Mitchell Wine

The plaintiffs, who lost money in syndicated mortgage investments, sought leave under the Crown Liability and Proceedings Act, 2019 to proceed with a class action against the provincial regulator (FSCO) and its senior employees.

The plaintiffs alleged that FSCO's failure to take regulatory action earlier despite warnings of a Ponzi scheme constituted bad faith.

The court granted leave for the claim of misfeasance in public office, finding a reasonable possibility that a trial judge could infer bad faith from FSCO's inexplicable carelessness.

However, leave was denied for the claims of misconduct by a public authority (which does not exist in Ontario) and negligence (as FSCO owed no private duty of care to individual investors).

The plaintiffs sought to certify five related class actions against Fortress Real Capital Inc., its principals, and two real estate appraisers regarding losses suffered from investing in syndicated mortgage loans.

The court certified the actions against Fortress and its principals, finding the pleadings disclosed viable causes of action in fraud and negligent misrepresentation, and that the other certification criteria were met.

However, the court dismissed the certification motions against the appraisers, concluding it was plain and obvious the claims would fail because the appraisers owed no duty of care to the investors and their reports expressly disclaimed third-party reliance.

The court also held the Harmony Village action in abeyance to allow the plaintiffs to substitute a suitable representative plaintiff.

The appellant appealed and sought judicial review of a Condominium Authority Tribunal (CAT) decision ordering the removal of a dog and finding violations of parking rules.

The appellant argued the CAT misapprehended evidence regarding a service dog exemption and raised new arguments including equitable estoppel and bad faith.

The Divisional Court dismissed the appeal and application, finding the CAT's conclusions were reasonable and supported by evidence, and declined to entertain arguments not raised before the tribunal.

The plaintiffs brought a motion for leave to commence a class action against the Crown and Crown employees for losses suffered from investments in syndicated mortgage investments marketed by Tier 1 Transaction Advisory Services Inc. The defendants moved to strike an affidavit from Krista Zingel on the grounds that she is not a compellable witness under the Public Service of Ontario Act, 2006.

The plaintiffs challenged the constitutionality of that Act.

During cross-examination of the defendant Monid on his affidavit, the plaintiffs sought rulings on the propriety of objections to various questions.

The court ruled on the scope of cross-examination on a leave motion, considering relevance, proportionality, and improper legal argument.

This is a costs endorsement following the dismissal of a motion for an injunction.

The respondent sought costs in the amount of $116,344.59, including a claim for substantial indemnity costs based on offers to settle.

The court considered whether costs should be reserved to trial or awarded forthwith.

While the general rule is that costs on unsuccessful injunction motions should be paid forthwith, the court found that costs should be reserved to the cause based on the particular circumstances of the case, including the respondent's delivery of an undertaking that addressed the applicant's concerns and formed the basis for the dismissal.

The applicants sought a permanent or interlocutory injunction to prevent the respondent from interfering with their easement rights over a laneway.

The respondent, a non-profit charitable corporation, intends to construct a long-term care home and has proposed restrictions to the laneway width and temporary closures.

The court dismissed the motion for an interlocutory injunction, finding that while the applicants demonstrated a substantial issue to be tried, they failed to establish irreparable harm.

The court noted that the applicants had previously agreed to similar restrictions in a Memorandum of Understanding in exchange for removal of a restrictive covenant, and that any damages would be quantifiable.

The balance of convenience favoured the respondent's development of the long-term care facility.

The court considered a motion to strike or exclude expert reports filed by the plaintiffs in a proposed class action concerning alleged regulatory failures in the oversight of syndicated mortgage investments.

The court found that the expert evidence was relevant to the leave motion but ultimately struck the affidavit of one expert and portions of another for lack of impartiality and proper qualifications.

The decision clarifies the threshold requirements for admissibility of expert evidence, including relevance, qualifications, and impartiality, in the context of motions for leave under the Crown Liability and Proceedings Act, 2019.

The court approved the settlement and class counsel fees in a series of related class actions brought by investors in syndicated mortgage loans against Fortress Real Capital Inc., Fortress Real Developments Inc., and others, including the Sorrenti Defendants.

The settlement, representing approximately 82% of the available insurance, was found to be fair, reasonable, and in the best interests of the class.

The court certified the actions as class proceedings for settlement purposes and approved the distribution plan and counsel fees.

The court approved a settlement agreement in a class action concerning losses suffered by investors in a syndicated mortgage loan promoted by Fortress Real Developments Inc. and Fortress Real Capital Inc. The settlement, reached with FMP Mortgage Investments Inc. and related defendants, provides for a $3,000,000 payment to class members, representing a substantial portion of the available insurance.

The court also certified the action as a class proceeding for the purposes of the settlement, approved class counsel fees, and made ancillary orders to facilitate the administration of the settlement and protect the parties involved.

The plaintiff, Giuseppe Lisozzi, brought a motion seeking a full accounting of the defendant Montana Holdings Limited's Power of Sale transaction, including documentary proof for claimed deductions and expenses, and payment of proper residual funds.

Montana consented to the accounting but brought a cross-motion for security for costs, arguing the plaintiff was impecunious and the action frivolous.

The court granted the plaintiff's motion for an accounting, finding that the plaintiff was entitled to a significant sum and was not impecunious.

The court dismissed the defendant's cross-motion for security for costs, ruling that imposing security for costs was not a reasonable term or condition for granting the accounting order, as the accounting request was not directly related to the plaintiff's claim of an improvident sale and the plaintiff had no improper motive.

The plaintiffs in a class action regarding syndicated mortgage loans moved for approval of the Notices and Notice Protocol for an upcoming certification and settlement approval hearing with certain settling defendants.

The court approved the proposed Notice Protocol, which involves direct notice to putative class members by email or mail via the court-appointed Notice Administrator, finding it to be effective and proportionate.

The appellant tenant appealed an order granting relief from forfeiture of a commercial lease, challenging findings regarding its use of the premises, the landlord's refusal to consent to a lease assignment, an order to remove an abandoned truck, and an allegation of judicial bias.

The Court of Appeal found no palpable and overriding error in the motion judge's findings that the tenant breached the lease's use provisions by constructing kitchen cabinets, that the landlord was entitled to refuse the assignment due to the breach, and that the truck removal order was valid.

The court also dismissed the bias allegation, interpreting the motion judge's comments as an attempt to minimize future acrimony.

The appeal on costs was denied as leave was not sought and the award was within the motion judge's discretion.

The appeal was dismissed in its entirety.

The appellant landlord appealed a judgment that declared its lease termination invalid.

The Court of Appeal dismissed the appeal, affirming that the landlord's notice of termination was invalid because it failed to specify the precise amount of arrears and did not warn the tenant of the intention to terminate, which was required due to prior communications only mentioning interest accrual.

The court also upheld the costs award from the lower court and awarded costs for the appeal to the respondent.

Talon International Inc. brought a motion to remove Mitchell Wine and MSTW Professional Corporation as lawyers of record for the defendant Byung Sook Min, alleging a conflict of interest.

The conflict arose from Mr. Wine's prior representation of 22 other unit purchasers in 19 actions against Talon, which had settled with confidentiality provisions.

Talon argued Mr. Wine possessed confidential settlement information relevant to the current action.

Applying the MacDonald Estate and Celanese Canada Inc. tests, the court found Mr. Wine's new retainer was sufficiently related to his previous representation, creating a rebuttable presumption of confidential information possession that was not rebutted.

The court concluded there was a real risk of prejudice to Talon that could not be overcome by remedies short of disqualification, balancing the integrity of the justice system against the litigant's choice of counsel.

The motion was granted, and Mr. Wine and his firm were removed as counsel.

The appellant appealed a summary judgment, arguing the motion judge erred in finding the respondent met her duty to mitigate following his breach of a contract of purchase and sale, and that the motion judge's reasons were inadequate.

The Court of Appeal dismissed the appeal, finding the motion judge's reasons functionally adequate and her determination on mitigation reasonable.

The respondent was not obligated to grant further extensions or engage with the appellant's subsequent offers after his repeated failure to close the transaction.

A developer, 375 Lakeshore Developments Inc., sought a permanent injunction to enforce releases signed by homeowners (Tong Lin, Jing Ning, and Michael Watkinson) to prevent them from pursuing warranty claims with Tarion Warranty Corporation regarding cold temperatures on the ground floor of their new townhouses.

The homeowners had accepted a $1,200 cash settlement based on the developer's representation that the issue was an inadequate heating system.

Tarion later identified the problem as a major structural defect due to insufficient insulation, with estimated repair costs of $80,000-$100,000 per unit.

The court dismissed the application, finding the releases unenforceable under s. 13(6) of the Ontario New Home Warranties Plan Act, which prohibits contracting out of statutory warranties, and also rescinded the releases on the basis of innocent misrepresentation by the developer regarding the true cause and severity of the defect.

Following an appeal of a Master's order extending the time to set the action down for trial, the parties made written submissions on costs.

The court found that there was divided success on the appeal, as the appellants successfully challenged the Master's reasoning but the respondents successfully affirmed the ultimate outcome.

Balancing the factors under Rule 57.01, the court ordered that all parties bear their own costs.

The successful defendants sought their costs of the trial.

The court found that the plaintiff's conduct throughout the litigation was egregious and reprehensible, including forging a signature and improperly registering notices on title to delay the sale of a property.

As a result of this malicious and unreasonable conduct, the court awarded the defendants their costs on a substantial indemnity basis.

The defendants appealed a Master's decision granting the plaintiffs an extension of time to set their medical malpractice action down for trial under Rule 48.14(7).

The Superior Court found that the Master erred in law by applying a 'contextual analysis' that relaxed the requirement to meet both parts of the conjunctive test for delay, and erred in fact by relying on evidence outside the record.

However, exercising its own discretion under s. 134 of the Courts of Justice Act, the Court determined the motion on the record and found the plaintiffs had provided an acceptable explanation for the delay and that the defendants would suffer no non-compensable prejudice.

The Court affirmed the 12-month extension but set aside the Master's costs award, ordering no costs for the motion.

This endorsement from a case conference outlines a revised schedule for a class action proceeding.

The previous schedule for a certification motion was disrupted, necessitating a motion to amend the Statement of Claim.

The court approved a new timeline, setting dates for the service of motion records, cross-examinations, factum exchanges, and hearings for both the amendment motion (September 10, 2020) and the certification motion (November 26, 2020).