Pamela Miehls

The court granted default judgment in favour of Aird & Berlis LLP against Spotlight Development Inc. and Shahrzad Larjani (a.k.a.

Sherry Larjani) for unpaid legal fees.

The decision addresses the consequences of being noted in default, the test for default judgment, and the assessment of damages, costs, and interest.

The court found the fees reasonable and awarded partial indemnity costs and interest at the statutory rate.

The appellant, Liquid Capital Exchange Corp., was defrauded in a factoring business scheme by WF Canada Ltd.'s principals.

Liquid Capital sued Frank Zito, an Enbridge Gas Distribution Inc. employee, alleging his participation in the fraud, and sought to hold Enbridge vicariously liable.

The trial judge dismissed the action, finding Liquid Capital had not proven Zito's involvement and, even if he was involved, Enbridge would not be vicariously liable.

On appeal, the Court of Appeal for Ontario upheld the trial judge's findings, concluding there was no reversible error in refusing to find Zito liable and no error in the costs award.

The appeal was dismissed, and leave to appeal costs was denied.

The plaintiff, Liquid Capital Exchange Corp., sought damages for fraud against multiple defendants, including two individuals (Cook and Daoust) who created false invoices, and an Enbridge employee (Zito) and Enbridge Gas Distribution Inc., alleging their involvement or vicarious liability.

The court found that Liquid Capital failed to prove Mr. Zito's participation in the fraud on a balance of probabilities, noting the plaintiff's significant lack of due diligence due to an misplaced trust in one of the fraudsters.

The court also determined that even if Mr. Zito had been involved, Enbridge would not be vicariously liable as Mr. Zito acted outside the scope of his employment and lacked the authority to approve such contracts or invoices.

The action against the defendants was dismissed.

This motion addressed the proper penalty for the respondents' contempt of a consent order prohibiting illegal dumping and site alteration.

The court had previously found the respondents in contempt due to their bad faith, lack of credibility, and continued breaches even after warnings.

The decision considered proportionality, mitigating and aggravating factors, deterrence, denunciation, and the contemnors' ability to pay.

The court imposed a fine of $110,000 payable to the Provincial Treasurer and ordered the respondents to pay $140,000 in full indemnity costs to the applicant, finding their conduct deliberate and disrespectful.

The court issued a costs endorsement following its refusal to dismiss an application for assessment of solicitor's accounts due to inordinate delay.

The delay was primarily institutional, not attributable to the clients.

The clients were awarded partial indemnity costs of $6500, inclusive of HST and disbursements, despite seeking $7835.08 plus an additional $2500.

The reduction accounted for a period of client-attributable delay and some duplication of effort with a prior application.

The solicitors brought a motion to dismiss the clients' application for an assessment of accounts due to delay.

The accounts related to services provided between 2002 and 2012, and the assessment was ordered in 2012.

The court found that while the delay of over five years was inordinate and posed a risk of prejudice to the solicitors, it was not inexcusable on the part of the clients.

The delay was primarily institutional, caused by the actions and decisions of the assessment office.

The motion to dismiss was therefore dismissed.

The appellants sought to challenge legal accounts rendered by the respondent law firm to their creditor, Sun Life, in connection with enforcement of a secured loan.

The appellants had signed three successive release agreements that purported to preclude assessment of the accounts.

The motion judge held that the releases were effective to bar assessment.

On appeal, the Court of Appeal dismissed the appeal but on different grounds.

While expressing concerns about the motion judge's reasoning regarding the Solicitors Act, the appellate court held that the appellants failed to establish special circumstances required under section 11 of the Solicitors Act to justify assessment of accounts already paid by a third party.

The respondent law firm brought a motion seeking a declaration that three releases, signed by the applicants as part of various commercial agreements, precluded the assessment of legal accounts rendered by the respondent to Sun Life Assurance Company of Canada.

The applicants opposed, arguing the releases constituted contracting out of the protections of the Solicitors Act and that the respondent was estopped by res judicata or issue estoppel from challenging a Registrar's Order for assessment.

The court found that the releases were valid commercial agreements between sophisticated parties, represented by counsel, and did not fall within the public policy concerns of the Solicitors Act as articulated in Jean Estate.

The court also determined that res judicata and issue estoppel did not apply because the validity of the Registrar's Order was not previously litigated.

The respondent's motion was granted, and costs were awarded to the respondent.

The plaintiff, Claudine Benjamin, brought an action against Primerica Life Insurance Company of Canada, Masoud Movahedi, and Hooper-Holmes Canada Ltd. Primerica moved to strike the jury notice, arguing the plaintiff claimed declaratory relief or that a mixed jury/non-jury trial was impractical.

The plaintiff cross-moved to serve a jury notice in a previously consolidated action.

The court set aside the consolidation order, granted the plaintiff's unopposed motion to serve a jury notice in the second action, and dismissed Primerica's motion to strike the jury notice.

The court found that the plaintiff's claim, though framed as a "declaration," was in essence a claim for damages based on factual findings regarding insurance coverage, not purely declaratory relief under s. 108(2) of the Courts of Justice Act.

The plaintiff brought a partial summary judgment motion seeking declarations regarding the construction of a floating dock and boathouse by his neighbors on a lake.

The neighbors had built the structure without municipal building permits or provincial work/occupancy permits, relying on the municipality's position that it lacked jurisdiction over Crown lands and the province's position that floating structures were exempt.

The court held that the municipality's zoning by-laws and the Building Code Act apply to private individuals constructing on Crown lands covered by water.

Furthermore, the court found that the provincial regulations under the Public Lands Act require work and occupancy permits for such structures, rejecting the government's interpretation as absurd.

Following a trial concerning ownership of a residential property, the successful plaintiff sought costs after obtaining a declaration of a one-half interest in the property.

The court considered a Rule 49 offer to settle under the Rules of Civil Procedure in which the plaintiff had offered to sell her interest for $250,000, which the estate declined.

Evidence of comparable sales indicated the property value exceeded $500,000, meaning the plaintiff achieved a better result at trial.

The court held that Rule 49 consequences applied, awarding partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

Costs were ordered against the estate but not against the co-defendant who had assigned his interest before trial.

The defendants brought a motion to lift a stay imposed in 2001 pending determination of a right-to-sue application before the Workplace Safety and Insurance Appeals Tribunal and sought dismissal of the action for delay.

The self-represented plaintiff requested that the stay continue while she pursued reconsideration or judicial review of the tribunal decision.

The court held that the stay should be lifted because the tribunal decision constituted a final determination and further proceedings should not delay the civil action.

However, despite the long history of delay, the court declined to dismiss the action, finding that the existing documentary record would permit a fair trial and that the defendants had consented to the stay and delayed bringing the motion.

The action was restored to the trial list with expedited pre-trial and trial dates.

The plaintiff sought a declaration that she held a beneficial one-half interest in a Toronto property formerly owned by her deceased husband as tenant-in-common with his brother.

The defendants argued the property was held in trust for the brothers’ mother and that the plaintiff only held title as trustee rather than beneficial owner.

After reviewing the family’s financial contributions, tax filings, and historical dealings with the property, the court found no evidence of an express, resulting, or constructive trust in favour of the mother.

The evidence showed the brothers were the true beneficial owners who funded and maintained the property and consistently declared rental income on their tax returns.

The plaintiff therefore succeeded to her late husband’s beneficial half-interest, and the court ordered partition and sale of the property with proceeds divided equally.

During a trial concerning ownership of residential property and whether a resulting or constructive trust existed in favour of an estate, the plaintiff brought a mid‑trial motion seeking production of the deceased’s wills.

The court considered the principles of relevance and admissibility under the Rules of Civil Procedure and common law evidence authorities.

The wills were found to be potentially relevant to the intent of the deceased regarding the property at issue.

The court rejected arguments that family conflict created undue prejudice and held any risk could be controlled in a judge‑alone trial through appropriate weight.

Production of the wills was ordered subject to a confidentiality order sealing them from the public record.

The mortgagee brought a motion for summary judgment to enforce a mortgage and dismiss the borrowers’ claims that the debt had been discharged.

The borrowers asserted that they had paid the mortgage using purported electronic fund transfer instruments or bills of exchange marked “Not For Deposit” and “Without Recourse.” The court found that the documents were drawn on a closed bank account and that there was no evidence of actual payment.

Concluding that the borrowers failed to provide evidence establishing any genuine issue requiring a trial, the court held that the instruments were worthless and did not constitute payment of the mortgage debt.

Summary judgment was granted to the mortgagee and the borrowers’ claims were dismissed.

Two applicants sought judicial review of municipal by-laws implementing a volume-based solid waste user fee and associated rebate program introduced by the City of Toronto.

The applicants argued that the waste collection charge was in substance an unlawful tax affecting provincial tax ratio rules and that the rebate constituted an impermissible redistribution of property taxes contrary to the City of Toronto Act, 2006.

The court held that the waste charge was a valid user fee because a sufficient nexus existed between the amount collected and the cost of providing waste services.

The court further held that the rebate was properly characterized as a municipal grant authorized under s. 83 of the City of Toronto Act, 2006 rather than a tax rebate.

The applications to quash the relevant by-law provisions were dismissed.