Milton A. Davis

The plaintiff purchased an industrial property that was later discovered to be contaminated with PCBs.

The plaintiff sued the vendor and related companies for fraud, alleging they concealed the contamination.

After several years of litigation, the plaintiff moved to discontinue its fraud action and counterclaim.

The defendants opposed, seeking dismissal and costs on a full indemnity scale.

The court granted the plaintiff leave to discontinue the action on terms that prevent future litigation on the same causes of action.

The court also ordered the plaintiff to pay the defendants' costs fixed at $516,395.23 on a substantial indemnity scale, finding that the fraud allegations were unsubstantiated but not intentionally misleading.

The defendants brought a motion for leave to discontinue their counterclaim and a related fraud action, and to redeem a mortgage.

The plaintiff brought a cross-motion for leave to discontinue its claim for foreclosure.

The court granted the defendants leave to redeem the mortgage upon payment of the principal, interest, and costs totaling over $1.2 million, and granted leave to discontinue their actions upon payment of costs of $516,395.23.

The plaintiff's cross-motion to discontinue the foreclosure claim was dismissed.

The plaintiff commenced an action against her former legal and financial advisors alleging negligence and breach of fiduciary duty in connection with advice provided during negotiation of a marriage contract.

The defendants brought summary judgment motions asserting that the action was statute‑barred under the Limitations Act, 2002 and constituted an abuse of process because the plaintiff had a statutory remedy under s. 56(4) of the Family Law Act to set aside the marriage contract against her spouse.

The court held the plaintiff failed to rebut the presumption of discoverability and knew or ought to have known of the material facts giving rise to her claims more than two years before commencing the action.

The court further held that attempting to obtain, through damages against advisors, relief that should have been pursued through family law proceedings constituted an abuse of process.

Competing motions arose regarding funding the care of an incapable elderly woman under the Substitute Decisions Act.

One child sought to increase a line of credit secured against the incapable person’s Toronto condominium to fund ongoing care, while other siblings sought an order to sell a Florida condominium allegedly jointly owned with one sibling.

The court held that the urgent need to maintain care justified extending the line of credit, while disputes concerning ownership, expenses, occupation rent, and tax consequences relating to the Florida property required further evidentiary determination.

A bifurcated hearing was ordered to resolve those issues before determining whether the Florida property should be sold.

Following a prior decision granting summary judgment on liability to the plaintiff, the court considered the issue of costs.

The plaintiff sought costs of the summary judgment motion and the proceeding to date.

The court noted that the potential range of damages remained uncertain and could significantly affect the appropriate costs disposition.

Because damages might ultimately be minimal or reflect only disgorgement of profit, the court held that the proper allocation of costs could not yet be determined.

Costs were therefore reserved pending the final determination of damages.

A secured creditor brought an action as assignee of a court‑appointed receiver alleging fraudulent misrepresentation arising from the sale of a commercial property during receivership.

The defendant purchaser had secretly arranged to resell the property for a substantially higher price and directed title to the ultimate buyer while providing transaction documents that falsely described that buyer as the purchaser under the receiver’s agreement of purchase and sale.

The defendant moved for summary judgment dismissing the claim.

The court held that although the defendant had no initial duty to disclose the flip transaction, the closing documents contained express misrepresentations and misleading statements that constituted fraudulent misrepresentation.

The motion was dismissed and liability was determined, with causation and damages to be addressed in subsequent proceedings.

Following reasons determining a contract interpretation dispute regarding the price payable to repurchase property, the court addressed costs.

The successful party sought partial indemnity costs of approximately $32,000, while one opposing party proposed a $10,000 award and another argued that no costs should be ordered.

Applying the principles in Rule 57.01 of the Rules of Civil Procedure and the jurisprudence emphasizing fairness and reasonableness, the court found the requested costs excessive given the number of lawyers involved and the volume of hours billed.

The court reduced the award and fixed costs at $15,000 payable by one applicant, noting that the other applicant had minimal involvement in the litigation.

The plaintiffs brought a motion arising from a dispute over the conduct of examinations for discovery, specifically whether the plaintiff could attend the defendant’s discovery and the order in which discoveries should occur.

The action alleged misrepresentation and fraud relating to investments connected to speaking engagement events and an alleged IPO opportunity.

The court considered the principles governing exclusion of a party from attending an opposing party’s examination for discovery, including the requirement of “proper cause” and the risk of tailoring evidence where credibility is central.

Given evidence suggesting credibility would be a critical issue and concerns regarding potential tailoring of testimony, the court concluded that the interests of justice justified limiting attendance until one party had completed examination.

The plaintiff’s request to strike the defence and related relief was rejected, and directions were provided for how the discoveries should proceed.

The applicants sought a declaration that they could exercise a contractual option to repurchase real property for $400,000 after crediting an $800,000 vendor take‑back mortgage against a stated repurchase price of $1,200,000.

The respondent argued the mortgage clause required payment of the full $1,200,000 to reacquire the property, with the mortgage deemed satisfied upon payment.

The court applied principles of contractual interpretation and held the clause was unambiguous: exercising the option required payment of $1,200,000 without deduction for the outstanding mortgage.

Contextual evidence and surrounding circumstances did not alter the plain wording, and the contra proferentem rule was inapplicable because both parties participated in drafting the agreement.

The application was dismissed and the respondent’s cross‑application granted declaring that the option could only be exercised upon payment of $1,200,000 subject to normal real estate adjustments.

A secured creditor applied for the appointment of a receiver over a resort property following repeated defaults under loan agreements secured by mortgages and general security agreements.

A second mortgagee opposed the application, proposing to cure arrears under the first mortgage pursuant to s. 22 of the Mortgages Act and conduct a power of sale instead.

The court considered whether the appointment of a receiver under s. 101 of the Courts of Justice Act and s. 243(1) of the Bankruptcy and Insolvency Act was “just or convenient.” Given ongoing defaults, competing creditor interests, tax arrears, and disputes regarding the marketing and sale process, the court concluded that a court-supervised receivership would better protect the interests of all stakeholders.

The application was granted and a receiver appointed, subject to a reduced borrowing limit.

The moving party, a local resident, brought a motion for leave to intervene as an added party or friend of the court in an application concerning the sale of a charitable property operated as a tennis and aquatic club.

The main parties to the application had reached a settlement to sell the property and divide the proceeds among charitable purposes.

The court dismissed the motion to intervene, finding that while the moving party had an interest in the subject matter, her intervention would not significantly enhance the court's ability to determine the issues, as her position mirrored that of the applicants and the Public Guardian and Trustee was already involved.

Furthermore, granting intervenor status would cause undue delay and prejudice to the parties who had already reached a settlement.

The court considered whether a single-purpose corporate purchaser seeking specific performance after a failed land transaction was exempt from the mitigation principle in contract damages.

The majority held that incorporation benefits carry corresponding burdens, including reasonable mitigation efforts where substitute opportunities are available.

It concluded the purchaser lacked a substantial and legitimate basis to avoid mitigation and that the evidentiary record supported available comparable development opportunities.

The dissent would have restored trial damages, finding no palpable and overriding error on mitigation opportunity and reasonableness.

The appeal and cross-appeal were both dismissed, leaving the appellate reduction to nominal damages in place.

Multiple defendants brought motions seeking security for costs against a plaintiff who was ordinarily resident outside Ontario in two related civil actions.

The plaintiff argued impecuniosity and contended that an order for security would effectively drive him from the litigation.

The court held that the plaintiff failed to meet the high evidentiary threshold required to establish impecuniosity because he provided outdated financial disclosure and did not produce complete, current documentation regarding income, assets, liabilities, and borrowing capacity.

Finding the requested security amounts reasonable given the anticipated complexity and duration of the litigation, the court ordered the plaintiff to post security for costs in both actions, failing which the proceedings would be stayed.

The plaintiff brought a motion for summary judgment to recover amounts owing under a loan agreement.

The defendant admitted the loan in his statement of defence but alleged he signed the agreement under duress and without understanding its legal ramifications.

The defendant did not appear on the motion despite service by mail and email, which the court validated under the Rules of Civil Procedure.

The court found there was no genuine issue requiring a trial and that the evidentiary record established the debt.

Summary judgment was granted for the outstanding loan amount with contractual interest and substantial-indemnity costs.

The defendant developer and related parties brought a motion for summary judgment dismissing a condominium corporation’s claims arising from a 2005 transaction in which the corporation purchased surface rights to parking units and granted mortgages to the developer.

The corporation alleged negligence, breach of fiduciary duty, conflict of interest, and breach of statutory duty, claiming the purchase price was inflated and the mortgages invalid.

The court held that the claims were statute‑barred under the Limitations Act, 2002 because the relevant facts were known or reasonably discoverable at the time of the 2005 transaction.

The court further found no admissible evidence that the purchase price was excessive or that the defendants caused compensable harm.

Summary judgment was granted dismissing the action, and related motions for an injunction and to amend the claim were also dismissed.

Following a prior order requiring disclosure of the identity of a person who paid the bankrupt's legal fees, the court addressed the appropriate costs award.

The trustee sought substantial indemnity costs, arguing the bankrupt’s earlier motion lacked merit, while the bankrupt requested that no costs be awarded due to the allegedly novel legal issue.

The court held that the bankrupt’s position on privilege, although unsuccessful, was arguable and did not justify substantial indemnity costs.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court concluded that costs should follow the event but that the amount sought was excessive.

The court fixed partial indemnity costs payable by the bankrupt to the trustee at $7,000 inclusive of disbursements and HST.

Following earlier reasons dismissing the plaintiffs’ claim and declaring one plaintiff a vexatious litigant, the successful defendant sought costs on a substantial indemnity basis.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and emphasized the litigant’s persistent abuse of the court process, including repeatedly commencing unreasonable proceedings, making unfounded allegations against legal professionals and judicial officials, disobeying court orders, and failing to pay prior costs awards.

The court held that such conduct constituted special circumstances justifying costs on a substantial indemnity basis.

After reviewing the bill of costs, the court found the amount claimed fair and reasonable.

Costs of $69,121.33 were awarded payable forthwith.