Neil Kotnala

The applicants, six individuals with ongoing litigation against the respondent, brought an application under s. 140 of the Courts of Justice Act to declare the respondent a vexatious litigant and stay all her proceedings.

The respondent had initiated over 50 proceedings, many involving allegations of sexual assault and defamation against former romantic partners.

Despite finding that the respondent exhibited many badges of vexatious conduct, the court dismissed the application, emphasizing the importance of allowing civil claims of sexual assault to be adjudicated on their merits rather than being summarily stayed.

The plaintiff brought a motion to compel the defendant to comply with a previous court order requiring him to answer undertakings given during an examination in aid of execution.

The court reviewed the outstanding undertakings and found that the defendant had not demonstrated best efforts to answer several of them.

The defendant was ordered to answer the outstanding undertakings within 90 days and pay costs of $1,000.

The Toronto-Dominion Bank (TD) brought a motion for summary judgment against Pomer & Boccia Professional Corporation (P&B), David Michael Pomer, and Douglas LaFramboise for breach of a solicitor's undertaking.

The undertaking, executed by LaFramboise on behalf of P&B personally and as agent for their clients, required P&B to pay $150,000 to TD's lawyers by a specific date, independent of the clients' refinancing efforts in a fraudulent conveyance action (FCA).

The defendants argued that TD's claim was barred by res judicata, issue estoppel, abuse of process, and principal-agent obligations due to a prior judgment obtained against their clients in the FCA.

The court found the undertaking clear and unequivocal, binding P&B personally, and held that the current action for breach of undertaking was distinct from the FCA.

The doctrines of res judicata and issue estoppel did not apply as the issues and parties were different.

The motion for summary judgment was granted in favour of TD Bank.

The defendants brought a motion to set aside two partial default judgments obtained by the plaintiff, NRG Lites Inc., arguing the Registrar lacked jurisdiction.

The Master agreed, finding the claim was not for a liquidated demand as it required a legal determination of individual liability for a contract with an alleged non-existent corporation and lacked sufficient particulars.

The Master also criticized the plaintiff's counsel for sharp practice in obtaining default judgments without notice to opposing counsel.

The motion was granted, setting aside the judgments, notings in default, and writs of seizure and sale.

The appellant, a lawyer, appealed a Small Claims Court decision dismissing his claim for unpaid legal fees against his family's business.

The appellant argued he had a historical oral retainer with the company, established when his father ran it, which should apply to the disputed accounts.

The trial judge found no oral agreement existed for the specific accounts, noting the appellant delayed billing until after his sister took over the company and failed to inform her of the liability.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings and rejecting the appellant's new argument of unjust enrichment because it was not pleaded at trial.

The moving parties, individual defendants in a construction breach of trust action, sought leave to appeal an order dismissing their motion for partial summary judgment.

The motion judge had found that the limitation period for the breach of trust claim did not necessarily run concurrently with the breach of contract claim, and that a contractual amendment regarding payment terms was supported by consideration.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, no reason to doubt the correctness of the motion judge's decision, and no matters of general or public importance.

The individual defendants brought a motion for summary judgment to dismiss the plaintiff's breach of trust claim under the Construction Lien Act, arguing the claim was statute-barred.

The plaintiff had agreed to extend the time for payment of outstanding invoices after the corporate defendant requested forbearance.

The court found that the forbearance agreement was supported by consideration and was therefore enforceable.

Furthermore, the court held that the limitation period for a breach of trust claim does not automatically commence when payment is due, but is governed by the discoverability principle under the Limitations Act, 2002.

The motion for summary judgment was dismissed.

The appellant appealed a summary judgment that dismissed its entire claim, arguing the motion judge failed to address an alternative claim for unjust enrichment.

The Court of Appeal refused to entertain the argument because it was not raised in the factum and was advanced without notice to the respondents.

The appeal was dismissed for the reasons provided by the motion judge, with costs awarded to the respondents.

Majority shareholders of a family-owned corporation sought relief under ss. 207 and 248 of the Ontario Business Corporations Act, alleging oppression, lack of disclosure, and misappropriation of corporate funds by another director.

They requested removal of the director, repayment of funds, corporate disclosure, and winding up of the corporation.

The court held that although the parties’ expectations of participation and disclosure were reasonable, the evidence did not establish conduct amounting to oppression, unfair prejudice, or unfair disregard within the meaning of the OBCA.

The court found that the dysfunction arose from mutual mistrust and uncooperative conduct among several shareholders rather than wrongful conduct by a single party.

The application to wind up the corporation was dismissed, but the court issued directions requiring financial disclosure, shareholder meetings, repayment of certain legal fees, and restoration of the prior officer and director status quo.

The applicant sought a declaration under s. 178(1)(d) of the Bankruptcy and Insolvency Act that a prior judgment debt for breach of trust arising from construction trust funds was not released by the respondent’s bankruptcy discharge.

The respondent argued the original judgment was improperly obtained and that there was no evidence of wrongdoing sufficient to bring the debt within the statutory exception.

The court rejected the procedural challenge, finding the respondent had been properly served and had participated in the earlier proceeding.

Reviewing the evidentiary record, the court held the respondent failed to account for trust funds impressed under the Construction Lien Act and lacked credibility in denying involvement.

The failure to account for the trust funds constituted wrongdoing sufficient to trigger the s. 178(1)(d) exception.

Following the dissolution of ex parte Mareva injunctions obtained by the plaintiffs, the defendant sought costs on a substantial indemnity basis for the motions that resulted in the injunctions being set aside.

The court held that the defendant was the successful party on the motions and was entitled to costs.

However, substantial indemnity costs were not warranted in the circumstances.

The court fixed costs at $6,500 on a partial indemnity basis, payable upon termination of the action, with liability joint between the plaintiffs.

Any damages flowing from the granting of the injunction were left to be determined in future proceedings.