Patrick Bakos

Following divided success on cross-motions regarding discovery timetables and pleadings amendments, the parties submitted costs arguments.

The court awarded the defendants partial indemnity costs of $17,499.18, noting they were successful on the most contentious issues, though the plaintiff achieved some success.

The plaintiffs and defendants brought cross-motions for undertakings and refusals arising from examinations for discovery in an action for breach of a rental income guarantee program.

The court ordered the individual defendants to serve further and better affidavits of documents, including searches of relevant email addresses and phone numbers.

The court also ruled on numerous specific refusals from the examinations of several witnesses, applying principles of relevance and proportionality, and upholding claims of solicitor-client and litigation privilege where appropriate.

The plaintiff brought a motion for procedural relief regarding the location and order of examinations for discovery, and for leave to amend the statement of claim.

The defendants brought a cross-motion for a discovery plan.

The court ordered the defendant, who resides in Russia, to be examined first via videoconference.

The court partially granted leave to amend the statement of claim, allowing procedural updates and an expanded ownership claim, but denying a scandalous allegation and a new debt claim that was statute-barred.

Two sets of respondents brought motions under Rule 37.14 to set aside an order made in January 2025 striking their pleadings and granting significant relief to the applicant.

The respondents' former lawyer had failed to advise them of the motion leading to the order, lied about bringing a motion to set it aside, fabricated a court hearing and correspondence with judicial officials, and then disappeared from the proceedings.

The court found one set of respondents (the Foulidis respondents) met the test for setting aside the order, having moved forthwith once they discovered the deception, while the other set (the Conforti respondents) did not meet the forthwith requirement due to a six-month delay after retaining new counsel.

However, the court set aside the order for all respondents because maintaining it against only one set would create unmanageable procedural disparity, and directed a case conference to determine which enforcement steps should remain in place.

The plaintiffs and Pensio defendants brought undertakings and refusals motions involving over 140 questions arising from examinations for discovery.

The motions concerned a dispute over a $1,000,000 rental income program fee paid by the plaintiffs to a lawyer's trust account.

The plaintiffs alleged fraudulent misrepresentation, breach of fiduciary duty, and unjust enrichment.

The defendants asserted solicitor-client privilege and litigation privilege over various communications and documents.

The court addressed numerous discovery disputes, balancing the principles of relevance, proportionality, and privilege, and made determinations on approximately 140 disputed questions across multiple examinations.

The plaintiff brought a motion to compel answers to 79 refusals made by the defendants' representative during examinations for discovery in a 12-year-old action regarding frozen bank accounts.

The court applied the principles governing the scope of permissible discovery questions and ordered the defendants to answer only 6 of the 79 refusals.

The defendants were awarded partial indemnity costs of $9,211.37 for their substantial success on the motion.

The plaintiff brought a motion seeking two heads of relief: (1) an order compelling defendants to deliver affidavits of documents, attend discoveries, and grant leave to amend the statement of claim; and (2) an order compelling judgment debtors (Pistachio Financier Corp. and Real Crowd Capital Inc.) to answer refusals and undertakings from an examination in aid of execution, and requiring CIBC to produce documents.

The court noted the defendants' delay in document production, leading to the first part of the motion being resolved by consent with costs awarded to the plaintiff.

The second part of the motion was adjourned sine die because it was brought in the wrong proceeding and lacked proper documentation (factum/compendium).

The court emphasized the importance of communication, cooperation, and commonsense, and best practices for filing factums.

The appellant, Leonid Pekker, appealed a Superior Court judgment that recognized and enforced a Russian court's judgment against him for an unpaid loan.

The Russian judgment was obtained ex parte after Pekker failed to appear, despite being duly notified.

Pekker's subsequent appeal in Russia, challenging notice, was dismissed, and he did not pursue further appeals.

The Ontario Court of Appeal upheld the application judge's decision, finding no error in recognizing the foreign judgment.

The Court affirmed that the Russian proceedings met minimum standards of fairness, as Pekker had adequate notice and opportunity to defend and appeal.

The Court also upheld the exclusion of an unsworn expert report on Russian law.

The Bank of Montreal, a creditor, sought to set aside a fraudulent conveyance of real property by Roufat Iskenderov to Elena Lazareva.

The motion judge applied a ten-year limitation period under the Real Property Limitations Act.

The appellants appealed, arguing the two-year limitation period under the Limitations Act, 2002 applied.

The Court of Appeal for Ontario allowed the appeal, holding that the two-year limitation period from the date of discovery under the Limitations Act, 2002 applies to fraudulent conveyance actions, not the ten-year period under the Real Property Limitations Act.

The court found its previous decision in Anisman (ONCA) was wrongly decided due to a lack of historical context.

The discoverability issue was ordered to be tried together with the fraudulent conveyance claim.

The Plaintiffs, unit owners in a retirement home development, brought a motion to add additional parties as defendants and amend their Statement of Claim.

They alleged that the original defendant, Pensio Property Management Group Inc., defaulted on rental income guarantees and, along with proposed individual defendants and Rentalis Insurance Company, Inc., made fraudulent misrepresentations.

They also sought to add Tripemco Insurance Group Limited, the broker, for negligence.

The court granted the motion, finding that the proposed amendments properly pleaded causes of action and that joinder of all parties was appropriate, promoting the convenient administration of justice despite arguments of prematurity.

The Court of Appeal for Ontario quashed an appeal brought by 9001522 Canada Limited, finding it lacked jurisdiction under s. 71(1) of the Construction Act.

The court declined to exercise its discretion to transfer the appeal to the Divisional Court, dismissing 9001522 Canada Limited's cross-motion for transfer.

Costs were awarded to East Elgin Concrete Forming Limited.

The defendant, Trez MR Holdings (Ontario) Ltd., brought a motion for security for costs.

The motion was dismissed without prejudice, for the same reasons set out in a related proceeding (CV-21-943).

Given the divided success on the entirety of two motions, the court ordered that each party bear their own costs, resulting in no costs awarded.

The defendant/plaintiff by counterclaim, Trez MR Holdings (Ontario) Ltd. ("Trez"), brought a motion seeking leave to bring a motion for security for costs against the plaintiff/defendant by counterclaim, Probert Construction Inc. ("Probert"), in two related construction lien actions.

Trez argued there was good reason to believe Probert had insufficient assets in Ontario to cover costs, citing unpaid subcontractors and delays in prosecution.

Probert countered that it had ongoing projects and assets, and that the existence of liens alone was not proof of insufficiency.

The court found that Trez's evidence did not rise above mere speculation and failed to establish "good reason to believe" Probert had insufficient assets.

Consequently, leave to bring the motion for security for costs was refused, and the motion was dismissed.

No costs were awarded due to divided success on the overall motions (examination issues were resolved prior).

The City of Toronto appealed a decision of the Local Planning Appeal Tribunal (LPAT) that granted development charge credits to a group of developers for both work performed and cash contributions made under a Core Infrastructure Agreement.

The Divisional Court held that while the LPAT had jurisdiction to review the City's refusal to grant credits, it erred in law by treating cash contributions as 'work performed' under section 38(1) of the Development Charges Act.

The Court concluded that cash contributions are not eligible for development charge credits.

The Court also found that a complaint filed by some developers was not out of time.

The appellant, Professional Court Reporters Inc. (PCR), appealed a summary judgment decision concerning a sublease default by the respondents, Pistachio Financier Corp. and Real Crowd Capital Inc. o/a R2.

PCR sought damages for lost profit, post-judgment interest at a contractual rate, and costs on a higher scale, all of which were denied or limited by the motion judge.

The Court of Appeal upheld the motion judge's decision to deny lost profits, finding insufficient evidence to establish a loss.

However, the Court allowed the appeal regarding post-judgment interest and costs, ruling that contractual terms for interest and costs should be enforced absent exceptional circumstances, which were not present.

The defendant, a bank incorporated in Hong Kong, brought a motion to stay the plaintiffs' action for lack of jurisdiction or, alternatively, on the basis of forum non conveniens.

The plaintiffs, an Ontario resident and a Panamanian company, sued the defendant over funds held in Hong Kong accounts that were not transferred as instructed.

The court found it had jurisdiction simpliciter because the alleged tort of negligent misrepresentation occurred in Ontario.

However, the court exercised its discretion to stay the action, concluding that Hong Kong was the clearly more appropriate forum given the location of key witnesses, the governing law of the banking contracts, and the location of the funds.

The moving party, the City of Toronto, brought a motion for leave to appeal a decision of the Local Planning Appeal Board.

The Divisional Court granted leave to appeal in respect to the questions of law identified in the moving party's factum.

Costs of the leave motion were fixed at $10,000, payable in the discretion of the appeal panel.

The plaintiff, Capstack Advisory Services Inc., claimed payment of fees for debt financing services provided to the defendants for a condominium development project.

The defendants disputed the contractual terms, alleged negligence, and contested the amount claimed.

The court, in a hybrid summary trial, found that the Mandate Letter constituted the agreement, and the defendants were bound by their conduct despite the absence of a fully executed copy.

The court determined that Capstack had performed its obligations appropriately and was entitled to its fees, with a minor adjustment regarding the due diligence fee being included in the overall 1% fee.

All corporate defendants were found liable, while Tyler Ross was not personally liable.

This appeal concerned the enforceability of two significant loans, secured by promissory notes, against the estate of Dennis Chedli and his wife, Anna Chedli.

The motion judge had dismissed the claims, finding the notes either repaid, statute-barred, or void due to material alteration without assent.

The Court of Appeal partially allowed the appeal.

It found that the first promissory note, signed by both Dennis and Anna Chedli, was not repaid as a new loan, and that there was sufficient corroborative evidence (payments and discussions) that Dennis Chedli assented to its conversion to a demand note, making it enforceable against his estate.

However, the first note remained void and unenforceable against Anna Chedli and the collateral mortgage, as she did not assent to its alteration.

The second promissory note, signed by Dennis Chedli alone, was found to be statute-barred as there was no corroborating evidence of his assent to its conversion to a demand note.

The defendants moved for summary judgment to dismiss the plaintiff bank's fraudulent conveyance action as statute-barred, and alternatively to discharge a certificate of pending litigation (CPL) for delay.

The plaintiff brought a cross-motion to extend the time to set the action down for trial.

The court held that the applicable limitation period for an action to set aside a fraudulent conveyance of real property is the ten-year period under section 4 of the Real Property Limitations Act, not the two-year period under the Limitations Act, 2002.

As the action was commenced within ten years, the summary judgment motion was dismissed.

The court also declined to discharge the CPL or dismiss the action for delay, finding that both parties contributed to the delay and the plaintiff would suffer prejudice if the action were dismissed.

The plaintiff's motion to extend time was granted.