Nicolas Carlos Canizares

The defendants brought a motion to strike the claim of a corporate plaintiff, Lake View Town Development Inc., alleging incorrect identification and lack of proper authorization.

The plaintiffs argued the motion was abandoned due to the defendants' failure to properly confirm it under Rule 37.10.1.

The court found that the defendants' counsel failed to confer with opposing counsel, falsely represented in Form 37B that they had, and failed to amend their motion materials as previously directed.

Consequently, the motion was deemed abandoned, and the plaintiffs were awarded costs.

This decision addresses a reference ordered by Kimmel, J. to resolve disputes between a Landlord (2356802 Ontario Corp.) and a Tenant (285 Spadina SPV Inc.) regarding the Tenant's use of a $3,164,000 construction allowance.

The Landlord sought reimbursement for funds allegedly misspent on non-Landlord's Work.

The Tenant, through Ronald Hitti (also a respondent), argued against the need for accounting and, alternatively, that all funds were properly used.

The court found that the Tenant failed to adequately account for a significant portion of the allowance, ordering 285 Spadina SPV Inc. to reimburse $1,501,139.64 and Ronald Hitti personally to reimburse $3,500.

The applicants brought a motion to declare Ronald Hitti a vexatious litigant under section 140 of the Courts of Justice Act and, alternatively, to prohibit him from making further motions without leave under Rule 37.16.

The court reviewed Hitti's persistent and acrimonious conduct, including repeated unsuccessful motions, failure to pay multiple costs awards, and abusive correspondence.

The court found that Hitti's conduct met the criteria for vexatious litigation, granted the relief sought, declared him a vexatious litigant, and prohibited him from bringing further motions without leave.

Costs were awarded against Hitti.

The parties have been engaged in ongoing litigation regarding a commercial lease.

The tenant and its principal brought a motion under Rule 59.06 to introduce fresh evidence, alleging the landlord fraudulently omitted pre-lease emails that would have altered prior court decisions regarding rent arrears and construction allowances.

The landlord brought a motion to terminate the lease for non-payment of rent.

The court dismissed the tenant's motion, finding the proposed fresh evidence inadmissible as it constituted pre-contractual negotiations that did not clearly contradict the landlord's evidence or the final lease terms.

The court granted the landlord's motion to terminate the lease due to the tenant's ongoing default, but stayed the termination pending a companion oppression application, conditional on the payment of ongoing rent into trust.

Following a decision on commercial lease applications, two telecommunications companies (the Rooftop Tenants) sought their costs as deemed intervenors.

The Rooftop Tenants had successfully argued for continued access to their rooftop equipment through the tenant's premises.

The court found that the Rooftop Tenants were entitled to partial indemnity costs because their property interests were directly impacted and they were successful on the merits.

The court fixed costs at $20,000 for Rogers and $15,000 for Freedom Mobile, apportioning liability 75% to the tenant and 25% to the landlord.

On a commercial lease motion arising from a landlord’s purported termination for non-payment of rent, the court held that no rent was due on the termination date once rooftop lease credits required under the lease and prior judgment were properly applied.

The court found the landlord’s unilateral amortization of annual rooftop rent receipts was inconsistent with the prior lease decision and that the purported termination and lockout were invalid.

The tenant’s attempt to assert fresh rent-abatement claims for the pre-April 2022 period was barred by issue estoppel and abuse of process because those issues were bound up with the earlier adjudication of rent arrears.

The court reset the parties’ obligations by ordering payment of specified arrears, excusing rent during the period of wrongful lockout, directing immediate exclusive possession, lock replacement, and a reference on separate construction allowance disputes.

Competing commercial lease applications required interpretation of a negotiated lease governing redevelopment of a heritage property, allocation of a $4 million construction allowance, rooftop rental credits, rent arrears, and rooftop access for telecommunications tenants.

The court applied established contract interpretation principles to require the tenant to account fully for landlord-funded construction work and implied a term requiring repayment of overpaid construction allowance amounts not used for the landlord's work.

The court also held rooftop rent credits were payable from the commencement of the lease, found the landlord had not validly terminated the lease for alleged arrears, and granted relief from forfeiture if needed.

Pre-existing rooftop tenants were held entitled to continued access through the premises on the basis of their leases and easements of necessity, and the tenant was enjoined from interfering.

Success was divided overall, and no costs were ordered between landlord and tenant.

The applicant was involved in a motor vehicle accident and sought statutory accident benefits, including Income Replacement Benefits (IRBs) and chiropractic treatment, which the respondent insurer denied.

The Licence Appeal Tribunal found that the applicant suffered a concussion and was substantially unable to perform the essential tasks of his employment, entitling him to IRBs for the first 104 weeks post-accident.

However, the applicant failed to prove a complete inability to engage in any suitable employment, precluding IRB entitlement beyond 104 weeks.

The Tribunal also held that the chiropractic treatment plan was not reasonable and necessary.

Notably, the Tribunal determined that the Canada Emergency Response Benefit (CERB) received by the applicant is tantamount to "other remuneration from employment" under the Schedule and is therefore deductible from the IRB entitlement.

The claim for an award was dismissed as the insurer's denial was not unreasonable.

The appellant appealed a Master's decision refusing leave to amend his statement of claim to add third parties as defendants.

The Master found that the two-year limitation period had expired, as the appellant knew or ought to have known of the cause of action against the third parties when the original defendants delivered their statement of defence and third party claim.

The Divisional Court dismissed the appeal, holding that there was no contested issue of fact or credibility regarding discoverability that required a trial, and the Master correctly decided the limitation issue on the pleadings motion.

The plaintiff brought a motion to add third parties (an engineering firm and an engineer) as defendants to the main action, alleging negligence in renovation work.

The third parties resisted, arguing the proposed claim was statute-barred.

The court found that the plaintiff had sufficient information to discover the claim against the third parties much earlier than asserted, specifically by August 10, 2016, when the municipality served its third-party claim detailing the alleged negligence.

The plaintiff's motion to add the third parties was dismissed as being outside the two-year limitation period, emphasizing that due diligence requires acting on available information rather than waiting for certainty from discoveries.

The defendants brought a motion to set aside a default judgment related to a commercial lease dispute.

The court applied the five-factor test from Mountain View Farms Ltd. v. McQueen and found that while the defendants moved relatively promptly, they failed to provide a plausible explanation for their default and lacked an arguable defence on the merits due to a prior agreement waiving their claims.

The defendants' motion was dismissed.

The plaintiff's motion to amend the default judgment to reflect a prior payment was granted, reducing the principal amount to $85,850.00.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including income replacement benefits (IRBs).

The insurer denied ongoing IRBs, arguing that the applicant's impairments were due to pre-existing depression or a subsequent head injury caused by a falling Jacuzzi motor.

The arbitrator rejected the insurer's arguments, accepting expert evidence that the applicant suffered from post-traumatic stress disorder and a concussive injury directly resulting from the accident.

The arbitrator found the applicant completely unable to engage in any employment for which she was reasonably suited, entitling her to ongoing IRBs.

The claim for a special award was dismissed as the insurer had genuine issues to try.

The applicant sought exclusive possession of a Florida residential property, claiming the respondent held her joint interest in trust for him due to unjust enrichment.

The court found both parties lacked credibility, but based on consistent evidence, determined the property was purchased jointly from joint funds with equal contributions.

The applicant failed to prove a resulting trust or unjust enrichment.

The court also noted potential jurisdictional issues regarding foreign realty and dismissed the applicant's claim.

No costs were awarded due to both parties' conduct and deceit.

Following an endorsement determining the underlying application, the court considered written submissions on costs.

Both parties had served offers to settle, but neither offer produced a result more favourable than the court’s decision, so Rule 49 of the Rules of Civil Procedure did not affect the costs analysis.

The successful applicants sought costs on a partial indemnity basis totaling just over $31,500 inclusive of disbursements and tax.

The respondent requested an opportunity to have the applicants’ bill assessed but provided no substantive basis to challenge the hourly rates, hours worked, or disbursements.

Applying the factors in Rule 57.01 and the fairness considerations articulated in Boucher v Public Accountants Council (Ontario), the court found the claimed costs reasonable and awarded the requested amount.

The applicants and respondent are neighbours involved in a boundary dispute over a shared driveway and a triangular piece of land.

The respondent claimed possessory title to the triangle through adverse possession, while the applicants sought a declaration of ownership and the removal of fences and interlocking brick installed by the respondent on their property.

The court found that the respondent's adverse possession claim failed because the previous registered owner had interrupted the exclusive possession by entering the land to cut down trees before the 10-year statutory period expired and prior to the property's conversion to the Land Titles system.

The court granted the applicants' request for a declaration of ownership and ordered the respondent to remove the trespassing structures.

The plaintiff landlord sued the tenant and guarantor for unpaid rent after the defendants vacated leased commercial premises before the lease term expired.

The defendants alleged they were induced to enter the lease by negligent misrepresentations regarding the presence of physicians in the building and the expected volume of patient referrals.

Applying the principles for negligent misrepresentation from Queen v. Cognos, the court held that no actionable misrepresentation was established and that the alleged statements were either unproven, not relied upon, or constituted expectations rather than guarantees.

The court also noted that the written lease contained an entire agreement clause negating extraneous representations.

The defendants voluntarily assumed the business risk and the landlord had taken reasonable steps to mitigate damages.

Judgment was granted for the plaintiff for the outstanding rent and interest.

The applicant was injured in a motor vehicle accident and received statutory accident benefits.

The insurer terminated weekly income replacement benefits.

An interim benefit order was previously made, but payments were suspended pending satisfaction of an overpayment.

The applicant requested the date the overpayment was satisfied and resumption of interim benefits.

The insurer's counsel did not respond to inquiries or make submissions opposing the request.

The arbitrator ordered the insurer to provide the date the overpayment was satisfied and to resume payment of interim income replacement benefits.

The applicant insurer sought judicial review of a FSCO Director's Delegate's decision.

The respondent was injured in an accident and subsequently filed an amended tax return reporting previously unreported income.

The Director's Delegate held that under s. 64.1(2) of the Statutory Accident Benefits Schedule, the respondent was entitled to have his income replacement benefits adjusted to reflect the higher income reported in the amended return.

The Divisional Court dismissed the application, finding the standard of review was reasonableness and that the Director's Delegate's interpretation of s. 64.1(2) was both reasonable and correct.

The appellant was injured in a motor vehicle accident and claimed income replacement benefits.

He initially failed to report income earned from a numbered company on his tax return, but later filed an amended return and was reassessed by the CCRA.

The arbitrator excluded this income from the benefit calculation under s. 64.1(1) of the SABS-1996.

On appeal, the Director's Delegate held that s. 64.1(2) permits the inclusion of income that is subsequently reported by the insured, reversing the arbitrator's decision.

The applicant was injured in a motor vehicle accident and applied for income replacement benefits.

He had not reported approximately $20,000 in income on his original 2006 income tax return, but later filed an amended return to include it.

The insurer argued that under section 64.1 of the Statutory Accident Benefits Schedule, the unreported income should not be included in the calculation of benefits.

The arbitrator agreed, finding that the purpose of section 64.1 is to avoid complex inquiries into undeclared income, and that an amended return filed after the fact to remedy non-disclosure does not override the original return for the purpose of calculating benefits.