Patrick Bakos

The appellant lawyer appealed decisions of the Law Society Appeal Division that affirmed findings of professional misconduct, including knowing participation in real estate fraud, and the penalty of license revocation.

The appellant also appealed the dismissal of a motion seeking the recusal of two Appeal Division panelists based on their involvement in a prior costs appeal.

The Divisional Court dismissed the appeal on all grounds, finding no palpable and overriding error in the factual findings, no error in principle regarding penalty or costs, and no reasonable apprehension of bias.

The moving parties brought a motion for leave to appeal a lower court decision.

The Divisional Court dismissed the motion for leave to appeal.

Because the responding party failed to file costs materials by the directed deadline, the court made no order as to costs.

The defendants, having successfully obtained summary judgment dismissing the plaintiff's action, sought costs on a partial indemnity basis.

The court considered the factors under section 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

The court determined that partial indemnity costs should generally be calculated at 60% of full indemnity costs, not 66%.

After reviewing the parties' costs outlines and considering the complexity, importance of issues, and conduct of the plaintiff, the court adjusted the defendants' claimed hours and fixed costs at $80,107.16, inclusive of fees, disbursements, and taxes.

The defendants moved for summary judgment to dismiss the plaintiff's action seeking payment on two promissory notes and a declaration of entitlement to a matrimonial home based on a collateral mortgage.

The court found that the first promissory note, to which the mortgage was collateral, was paid off and materially altered without assent, rendering it and the mortgage unenforceable.

The second promissory note was found to be statute-barred under the Limitations Act.

The court granted summary judgment, dismissing the action and discharging the collateral mortgage.

The moving party brought a motion to set aside the Registrar's order dismissing his appeal for delay.

The moving party had been found guilty of professional misconduct for knowingly assisting in mortgage fraud, resulting in the revocation of his license to practice law.

The court found the moving party's reasons for delay uncompelling but noted there was no prejudice to the respondent.

The court granted the motion and set aside the Registrar's order on strict terms, requiring the appeal to be perfected within 21 days.

The defendants moved to prohibit the plaintiff, Bank of Montreal (BMO), from relying on documents released by their former lawyer, Susan Ambrose, claiming solicitor-client privilege.

BMO opposed, arguing privilege was waived or lost due to an illegal purpose (fraudulent transfer of property).

The court found that while Roufat Iskenderov initially held privilege, Elena Lazareva did not.

Privilege for two documents was waived by the defendants' own disclosure in affidavits of documents.

Furthermore, the privilege for all Ambrose documents was lost due to a prima facie case that Roufat may have used the separation agreement drafted by Ms. Ambrose as cover for a fraudulent transaction to defeat BMO's claims.

The motion to prohibit reliance on the documents was largely dismissed, allowing BMO to use the documents for the purpose of arguing fraudulent conveyance.

The defendants appealed a Master's order that granted the plaintiff leave to file additional evidence and conduct further examinations under Rule 39.02(2) and 39.03, pending the defendants' motion for summary judgment.

The underlying action involved claims against a deceased's estate, requiring corroborating evidence under s. 13 of the Evidence Act.

The Master found that the need for corroboration became apparent after cross-examinations and applied a contextual approach, limiting the additional evidence and allowing the defendants to respond.

The Superior Court upheld the Master's decision, finding no error in principle or misapprehension of the test under *First Capital Realty Inc. v. Centrecorp Management Services Ltd*.

The court emphasized deference to the Master's expertise in discovery matters and dismissed the appeal, awarding costs to the plaintiff.

These supplementary reasons address costs for a motion where the plaintiff sought leave to file additional affidavit evidence and conduct examinations after cross-examinations on a pending summary judgment motion.

The plaintiff initially sought leave for 15 witnesses, reduced to 9, and then suggested 3.

The court granted leave for no more than three additional witnesses.

Given this divided success, where the plaintiff did not obtain the broad order initially requested, the court ordered no costs for the motion.

The Court of Appeal remitted an application to the Superior Court to determine damages and costs after finding the purchaser breached an agreement of purchase and sale.

The sellers claimed damages for the difference in resale price and carrying costs, and sought costs on a substantial indemnity scale.

The court found the purchaser failed to prove the sellers did not mitigate damages.

Damages were awarded for the price difference and most carrying costs, less the deposit.

Costs were awarded to the sellers on a partial indemnity scale until their offer to settle, and substantial indemnity thereafter, with a reduction for counsel's conduct during cross-examination.

The plaintiff brought a motion for a status hearing under Rule 48.14(5) of the Rules of Civil Procedure to prevent the dismissal of its action for delay.

The defendants opposed the motion, seeking dismissal of the action against them.

The court found that the plaintiff provided an acceptable explanation for the litigation delay, which included ongoing settlement discussions and issues related to the decommissioning of a gas station site.

The court also determined that the defendants would suffer no non-compensable prejudice.

Consequently, the motion was granted, the action was allowed to proceed, and a timetable for the remaining steps was ordered.

No costs were awarded for the motion.

The appellants (sellers) appealed a decision granting the respondent (purchaser) rescission of an agreement of purchase and sale and return of the deposit.

The dispute concerned the interpretation of an illegal substances clause in a standard form Ontario Real Estate Association/Toronto Real Estate Board Agreement of Purchase and Sale.

The purchaser discovered after execution that the property had previously been used as a marijuana grow-operation and sought to terminate the agreement.

The application judge found the sellers had breached their representation and warranty in the clause.

The Court of Appeal reversed, holding that the sellers' representation and warranty regarding the property's prior use was limited to their knowledge and belief as it existed at the time of execution of the agreement, not at closing.

Since the sellers did not know about the prior use at execution, no breach occurred.

Following the successful application by the purchaser to rescind an agreement of purchase and sale due to the property's history as a marijuana grow-op, the purchaser sought costs of $30,000 on a partial indemnity scale.

The vendors argued no costs should be awarded due to unproven allegations of recklessness and procedural delays by the purchaser's counsel.

The court rejected the argument to deny costs entirely but reduced the quantum, finding some time spent by the purchaser's counsel was beyond the reasonable expectations of the unsuccessful parties.

Costs were fixed at $26,436.43.

The sellers of a residential property represented in the agreement of purchase and sale (APS) that, to the best of their knowledge, the property had never been used for the growth or manufacture of illegal substances.

Before closing, the purchaser discovered the property had previously housed a marijuana grow operation in 2004, a fact unknown to the sellers when the APS was made.

The purchaser refused to close and sought rescission and return of deposit, while the sellers sought declarations that the APS was binding and damages for breach.

The court found the "illegal substances clause" to be a material representation that induced the purchaser to enter the APS.

Upon learning the property's history, the sellers' representation became untrue, triggering a duty to disclose.

The court held that the purchaser was entitled to rescission, declaring the APS void ab initio, and ordered the return of the deposit.

The sellers' application was dismissed, and the purchaser's claim for damages was allowed to proceed as an action.

The appellants appealed a decision of the Superior Court of Justice dismissing their action regarding a property sale.

The appellants challenged the sale on multiple grounds, including that procedures in a manual were not followed, that the motion judge was biased, that no auction occurred, and that the sale was improvident.

The Court of Appeal found no basis to interfere with the lower court judgment, holding that the manual procedures did not have the force of law, the bias argument lacked merit, the motion judge properly accepted evidence that the auction occurred, and the appellants had adequate notice and failed to provide credible evidence of impropriety.

The applicants sought to set aside a sheriff's sale of their property, which was conducted to satisfy outstanding costs awards.

They alleged the sale was improvident, the required process was not followed, and they did not receive proper notice.

The court found that the sale price was not improvident based on a realtor's opinion, the auction was properly conducted, and the applicants had actual notice of the sale despite a minor procedural non-compliance with posting requirements.

The application was dismissed.

Following the dismissal of the Crown's appeal from costs ordered against it in forfeiture proceedings under the Controlled Drugs and Substances Act, the respondents sought costs of the appeal.

The Court of Appeal declined to award costs, noting that costs are generally not awarded against the Crown in criminal proceedings absent a Charter infringement, serious Crown misconduct, or exceptional circumstances.

The court found no serious misconduct by the Crown on the appeal itself, and no exceptional circumstances justifying a costs award.

Furthermore, the court noted that section 683 of the Criminal Code precludes a costs award on the appeal.

The appellant appealed a decision of the Law Society Appeal Panel regarding a costs award made by a Hearing Panel that had recused itself.

The Divisional Court applied a reasonableness standard of review to the Appeal Panel's decision.

The Court dismissed most of the appellant's arguments, finding the Appeal Panel reasonably concluded that both parties were at fault for failing to raise a conflict of interest issue earlier, and that success was divided on a bias motion.

However, the Court reduced the costs awarded to the Law Society for a motion to exclude evidence by 50%, as the parties agreed the motion took less time than the Appeal Panel had estimated.

The appeal was otherwise dismissed.

This decision addresses the costs arising from a dismissed summary judgment motion brought by the defendant, Klein-Rose Homes Inc., under the Construction Lien Act.

The court applied section 86 of the CLA, which grants broad discretion in awarding costs in construction lien proceedings, and considered the Rules of Civil Procedure where not inconsistent.

The plaintiff, Allcon Concrete & Haulage Ltd., was the successful party on the underlying motion and sought costs.

The court fixed costs at $26,560 for the plaintiff, payable upon the plaintiff's success at trial or a subsequent summary judgment motion in proving the validity of its claim for lien, irrespective of the full success on the contract claim or defense against the counterclaim.

The court rejected the defendant's argument to reserve costs to the trial judge and the plaintiff's assertion of the defendant's "unduly aggressive and unreasonable" conduct.

The Crown appealed a nearly $1 million costs award made against it after its unsuccessful application to forfeit two properties under the Controlled Drugs and Substances Act.

The application judge found the Crown's conduct, including pursuing a meritless application against innocent third parties and taking an intransigent attitude, amounted to a marked and unacceptable departure from reasonable standards.

The Court of Appeal dismissed the appeal, holding that the Ontario Court of Justice has an implied power to award costs in CDSA forfeiture applications, the correct standard was applied, and the quantum of costs was reasonable.

The appellant lawyer appealed a decision of the Law Society Appeal Panel, which had set aside a Hearing Panel's dismissal of professional misconduct complaints related to mortgage transactions.

The Appeal Panel found the Hearing Panel erred in law by incorrectly defining fraud and by concluding a lawyer need not disclose material facts if they reasonably believe the lender already knows them.

The Divisional Court dismissed the appeal, agreeing that a lawyer has a strict duty to disclose all material facts to a lender client, and that the Appeal Panel reasonably concluded the Hearing Panel's legal errors rendered its factual findings unsafe.