Neal H. Roth

The applicant mortgagee brought a motion to set aside any tenancy agreement and obtain an order for possession of the mortgaged property after the respondent owners defaulted.

The respondents failed to appear or provide evidence of a valid tenancy agreement, breaching a previous adjournment order.

The court granted the motion, finding no legal protection for the occupants without a tenancy agreement, and alternatively, that any such agreement was entered into to discourage mortgagee possession.

The occupants were ordered to vacate, and substantial indemnity costs were awarded against the respondent owners.

Following a trial where the plaintiff successfully proved a construction lien and defeated the defendants' counterclaim, the court determined the costs and interest payable.

The plaintiff sought substantial indemnity costs of $225,504.45, while the defendants argued for $85,000.

The court awarded the plaintiff $175,000 in substantial indemnity costs, citing the defendants' unreasonable conduct, misleading evidence, and failure to accept multiple generous offers to settle.

The court also awarded prejudgment interest at the contractual rate of 25%.

The plaintiff contractor brought a construction lien action against the defendant homeowners for unpaid work and extras on a residential renovation project.

The defendants counterclaimed for damages, alleging the plaintiff abandoned the project and performed defective work.

The court found that the defendants wrongfully repudiated the contract without justification, as the alleged deficiencies did not meet the high threshold required for termination.

The plaintiff was awarded $19,113.80 for the balance of the contract price and approved extras, less credits for unfinished work, and the defendants' counterclaim was dismissed.

This appeal concerned the application of s. 5(1)(a)(iv) of the Limitations Act, 2002, specifically when the respondent knew that a proceeding would be an appropriate means to seek a remedy for unpaid invoices.

The appellant, a condominium corporation, argued the action was time-barred, asserting the trial judge erred in applying discoverability principles and finding a running account.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that the limitation period began when the respondent was informed the condominium corporation was not obligated to pay invoices, rather than earlier.

The court upheld the running account finding and the application of discoverability principles, noting the defendant's assurances delayed the plaintiff's understanding of the need for litigation.

The moving parties (defendants) brought a motion under Rule 21.01(3) to strike paragraphs from the plaintiff's statement of claim, arguing the claims were barred by res judicata and abuse of process due to a prior construction lien action.

The plaintiff had previously obtained a default judgment on a counterclaim in the lien action and now alleged the moving parties stripped the corporate defendant's assets to make it judgment proof.

The court dismissed the motion, finding that the issues of fraud and asset stripping against the personal defendants were not and could not have been adjudicated in the prior lien action, as there was no judgment against the corporate defendant at that time.

The appellant homeowner appealed an order confirming a master's report that allowed the respondent contractor's action for unpaid renovation work and dismissed the appellant's counterclaim.

The appellant argued the master failed to address allegations of post-contractual misrepresentations and breach of the duty of honest performance, and that the motion judge erred in finding the entire agreement clause excluded these claims.

The Court of Appeal agreed that the entire agreement clause could not exclude the duty of honesty, but dismissed the appeal because the master's factual findings—that the parties had agreed to the charges for extra work—disposed of the factual underpinnings of the appellant's claims.

This was a costs-only decision following a successful Rule 58.11 hearing in which the client obtained an order directing a new costs assessment because she had been denied natural justice at the initial assessment.

The court applied s. 131 of the Courts of Justice Act and the Rule 57.01 factors, reduced claimed counsel fees as disproportionate for a brief and straightforward matter, allowed the listed travel and other disbursements, and rejected compensation for the client's own time due to lack of evidence of opportunity cost.

The court also considered the solicitor's conduct at the earlier assessment as relevant to costs.

Costs were fixed, all-inclusive, at $6,000.

The client brought a motion to oppose the confirmation of a Report and Certificate of Assessment regarding her former solicitor's account.

The client, who was self-represented at the assessment hearing, argued she was denied natural justice because the Hearings Officer did not allow her to make closing submissions.

The Superior Court of Justice agreed, finding that the Hearings Officer failed to assist the self-represented client and explicitly prevented her from making submissions on the ultimate issue, thereby violating the audi alteram partem rule.

The Report and Certificate of Assessment, along with related enforcement mechanisms, were set aside, and the matter was remitted for a new hearing before a different Hearings Officer.

The applicant sought a declaration that a 1991 default judgment against him was discharged by his bankruptcy and absolute discharge later that same year.

The respondent argued the debt survived under s. 178(1)(d) of the Bankruptcy and Insolvency Act because it allegedly arose from misappropriation of trust funds under the Construction Lien Act.

The court held that the default judgment, obtained from the registrar on unpaid invoices, did not incorporate a finding of breach of trust and that the pleadings and deemed admissions were insufficient to establish misappropriation.

The court also declined to vary or amend the judgment under Rules 19.08 or 59.06 or order a trial of the issue, citing delay and prejudice caused by the loss of records and witnesses over more than two decades.

The court declared that the debt was discharged by the applicant’s bankruptcy.

The plaintiffs, judgment creditors of the defendant Sandy DiFlorio, brought a motion for leave to issue a certificate of pending litigation against a property owned by Sandy's son.

The plaintiffs alleged that a $300,000 mortgage advance from Sandy to his son was a fraudulent conveyance designed to defeat creditors.

The court applied the criteria under section 103(6) of the Courts of Justice Act and found the plaintiffs had a reasonable claim to an interest in the land.

The motion for a certificate of pending litigation was granted.

A secondary motion to strike a statement of defence for unpaid costs was dismissed with leave to renew if costs remained unpaid.

Following earlier reasons dismissing competing motions relating to enforcement of an alleged settlement agreement and interlocutory relief in a corporate dispute, the court was asked to determine costs.

The moving party sought substantial costs relying on a prior offer to settle and alleged litigation conduct by another respondent.

The court held that neither side achieved meaningful success because the substantive dispute, including enforceability of the settlement agreement, would be determined at trial after the proceeding was converted into an action.

Given the largely technical successes and the likelihood that ultimate success would only be determined at trial, the court ordered that costs of the motions be costs in the cause.

No costs were awarded with respect to the parties’ competing claims for costs.

A motion was brought to enforce a settlement agreement under which a shareholder allegedly agreed to sell his one‑third interest in a corporation to the other shareholders.

The moving party sought summary enforcement of the settlement.

The responding party argued the settlement should not be enforced due to alleged fraudulent misrepresentations regarding the corporation’s financial condition and tenancy prospects.

The court held that a motion to enforce a settlement applies the same test as summary judgment and found that numerous genuine issues of fact required a trial.

The motion to enforce the settlement was dismissed and the original application was converted into an action to allow the disputed issues to proceed to trial.

The appellants sought leave to appeal costs awards.

The Court of Appeal granted leave to appeal the costs awards.

The court allowed the cross-appeal in respect of the motion to re-open the argued costs award, reducing it from $7,500 to $1,500.

The cross-appeal was otherwise dismissed, with costs of the cross-appeal fixed at $3,500 awarded to the respondents.

The appellants appealed an order rectifying a mortgage to include interest and costs.

The Court of Appeal dismissed the appeal, finding convincing evidence that rectification was required to reflect the parties' prior agreement, specifically a guarantee where the appellant agreed to secure the principal amount along with interest and costs.

The notation 'nil' on the mortgage was contrary to this prior agreement.

The appellants, Ontario residents, sold a Florida lot to the respondents.

A dispute arose, and the respondents obtained a default judgment in Florida for US$260,000 after the appellants failed to properly defend the action.

The respondents sought to enforce the judgment in Ontario, which had grown to approximately C$800,000.

The Supreme Court of Canada held that the 'real and substantial connection' test applies to the recognition and enforcement of foreign judgments.

The Court found that the Florida court properly took jurisdiction and that the appellants failed to establish the defences of fraud, natural justice, or public policy.

The appeal was dismissed, and the foreign judgment was enforced.

The appellants, having successfully appealed a trial decision regarding the enforcement of a Florida judgment, moved for the payment out of court of moneys they had posted as security for costs.

The respondents, who had been granted leave to appeal to the Supreme Court of Canada, moved for a stay of execution of the Court of Appeal's judgment.

The Court of Appeal dismissed the appellants' motion, finding it just to maintain the status quo and keep the security in court pending the Supreme Court appeal due to the appellants' non-resident status and potential hardship.

The Court granted the respondents' motion for a stay of execution, accepting an irrevocable $1 million guarantee from the Lawyers Professional Indemnity Company as satisfactory security.