Paul H. Starkman

The applicant sought to quash a warrant issued under s. 23(10) of the Food and Drugs Act authorizing Health Canada inspectors to enter a dwelling house and seize non-compliant health products, and to obtain the return of the seized goods.

The applicant argued the Superior Court had jurisdiction because the warrant was issued under Criminal Code provisions.

The court rejected this argument, finding the warrant derived from the FDA, not the Criminal Code, and that the inspectors constituted a federal board or tribunal under the Federal Courts Act.

The court held that the Federal Court had exclusive jurisdiction to review the seizure and declined to hear the application.

The Regional Municipality of Halton brought four consolidated actions against multiple defendants alleging fraud and conspiracy.

The court heard three motions: (1) the Ohashi defendants' motion to disqualify Edward Nagel as Halton's representative at examinations for discovery, which was dismissed in its entirety with costs; (2) David Allan Norris's motion for full and timely documentary disclosure, which was allowed in part without costs, with specific directions regarding production of financial statements, audit reports, emails, and other documents; and (3) Marion Rewa's motion, which was adjourned with costs on a substantial indemnity basis due to Rewa's submission of non-existent case citations and fictitious legal propositions in his factum.

The court also addressed housekeeping matters related to scheduling of examinations for discovery.

This costs endorsement addresses the aftermath of Remington Georgetown Inc.'s unsuccessful attempt to set aside an arbitration decision under the Ontario New Home Warranties Plan Act.

The court finds that both the set-aside application and a related Rule 14 application lacked merit, and that the respondent, Tarion Warranty Corporation, is entitled to full indemnity costs.

The court relies on the broad indemnity provision in the parties' Vendor Agreement and established case law regarding costs thrown away.

The endorsement also criticizes the applicant's unfounded allegations of arbitrator bias and concludes that the applicant must pay $212,000 in costs.

The appellants appealed a summary judgment dismissing their action against the respondent builder.

The appellants had purchased a newly built home but failed to transfer the closing funds until 9 minutes past the 5:00 p.m. deadline on the extended closing date.

The respondent terminated the agreement relying on a 'time is of the essence' clause, but subsequently offered to revive the agreement for an additional $113,000, which the appellants paid.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that the 5:00 p.m. deadline was unambiguous, the termination was not unconscionable, the revival fee was part of a new contract rather than an impermissible penalty, and the appellants did not act under economic duress.

The court dismissed Remington Georgetown Inc.'s application to set aside an arbitration award under the Ontario New Home Warranties Plan Act.

The applicant, a residential developer, challenged the arbitrator’s decision on four grounds: excess of jurisdiction, procedural unfairness, bias, and failure to provide reasons.

The court found no merit in any of the grounds, holding that the arbitrator acted within her jurisdiction, provided adequate reasons, and that the applicant’s complaints were attempts to appeal the merits of the decision, which is not permitted under the Act or the arbitration agreement.

The court also addressed the admissibility of affidavit evidence and provided directions for costs submissions.

The appellant, Starkman Barristers, sought to appeal an interlocutory order from the Superior Court of Justice that referred their accounts for assessment under the Solicitor's Act.

The Court of Appeal for Ontario concluded it lacked jurisdiction over the proposed appeal because the order was interlocutory, not finally determining the real issue between the parties.

The court reiterated that appeals from interlocutory orders lie to the Divisional Court with leave.

The appeal was quashed.

The Purchasers (Plaintiffs) moved for summary judgment seeking damages from the Vendor (Defendant) after a real estate transaction failed to close on time due to a 9-minute delay in fund transfer, leading the Vendor to terminate the Agreement of Purchase and Sale (APS) based on a "time is of the essence" clause.

The Vendor subsequently offered to "revive" the APS for an additional $113,000, which the Purchasers paid.

The Purchasers argued the Vendor acted in bad faith, imposed an improper penalty, and that the "revived" APS was entered into under economic duress.

The court found the "time is of the essence" clause was operative and breached by the Purchasers, entitling the Vendor to terminate.

It further ruled that the "revival fee" was part of a new, freely negotiated contract, not an unenforceable penalty, and that the Purchasers failed to establish economic duress.

Consequently, the Purchasers' motion for summary judgment was dismissed, and summary judgment was granted to the Vendor, dismissing the action.

The appellants appealed a motion judge's order, raising two issues: the respondent's failure to produce foundational expert documents and the untimely disclosure of a settlement agreement.

The Court of Appeal found no error in the motion judge's decision not to dismiss or stay the action on either ground.

The court upheld the motion judge's finding that the settlement agreement did not "entirely change the litigation landscape" and was not a Pierringer agreement requiring disclosure.

The appeal was dismissed, and costs were awarded to the respondent.

BIE Health Products brought a motion seeking production of expert instructions, communications between the Attorney General (AG) and its experts (Dr. Barbara Menzies and Errol Soriano), expert notes and draft reports, an updated AG List of Documents, and the unredacted version of an inadvertently disclosed document.

The court dismissed all aspects of BIE's motion, finding that expert instructions were adequately disclosed, no reasonable grounds existed to suspect undue interference with expert independence to warrant disclosure of communications or drafts, and the inadvertently disclosed document was subject to solicitor-client privilege.

Costs were awarded to the AG.

This appeal concerned a dispute over a pre-construction home purchase agreement, specifically regarding the vendor's obligations in setting closing dates and obtaining an occupancy permit under the Tarion Addendum.

The appellant purchaser argued that the vendor's notices for delaying closing dates were defective due to imprecise nomenclature and failure to include revised critical dates, leading to a deemed firm closing date and the vendor's repudiation of the agreement.

The appellant also contended that the vendor was not ready to close because the occupancy permit was issued after the closing date.

The motion judge dismissed the purchaser's summary judgment motions, finding that the vendor's notices were valid despite minor nomenclature issues and that the purchaser was contractually obligated to obtain the occupancy permit.

The Court of Appeal upheld the motion judge's decision, affirming that minor nomenclature flaws in notices do not invalidate them if the intent is clear and timelines are met.

The court also confirmed that the purchaser was responsible for obtaining the occupancy permit as per the agreement of purchase and sale, which was not inconsistent with the Tarion Addendum.

Consequently, the appeal was dismissed, and the purchaser's deposit was forfeited due to their default.

The moving party, Halton Standard Condominium Corporation No. 550, brought a motion to quash an appeal by the Del Ridge defendants.

The appeal concerned a motion judge's order that denied variations to previous relief regarding expert reports and denied a motion for a stay of the underlying action based on the non-disclosure of a Pierringer Agreement.

The Court of Appeal found the expert evidence aspect of the order to be interlocutory, but the denial of the stay related to the Pierringer Agreement to be a final order, thus appealable to the Court of Appeal.

Given the interrelatedness of the issues, the court decided to hear both aspects of the appeal together.

The motion to quash was denied.

The applicant brought a motion to strike the respondent's affidavits, arguing they contained inadmissible hearsay, opinion, argument, and constituted "fresh evidence" without leave.

The court emphasized the strict rules of evidence for affidavits, noting a troubling trend of non-compliance.

The court struck several paragraphs for inadmissible hearsay due to failure to specify sources and belief, and for inadmissible opinion and argument from lay witnesses.

The court rejected the "fresh evidence" argument, clarifying that the tests for fresh evidence do not apply to evidence filed before the main application hearing.

Leave to amend was granted for some struck paragraphs where deficiencies could be cured, but denied for others, particularly those containing opinion evidence from unqualified affiants.

No costs were awarded due to divided success and unreasonable positions taken by both parties.

The plaintiff appealed an Associate Justice's order discharging two certificates of pending litigation due to material nondisclosure on an ex parte motion.

The court found no error in the Associate Justice's decision and dismissed the appeal.

However, the plaintiff also moved for a Mareva injunction over the proceeds of sale of a property owned by the defendant daughter, arguing she failed to transfer a condominium to him as required by a separation agreement.

The court granted the Mareva injunction, finding a strong prima facie case, risk of dissipation of assets, and irreparable harm, and relieved the plaintiff from providing an undertaking in damages due to his limited financial means.

The defendant daughter brought a motion to discharge certificates of pending litigation (CPL) registered against two properties by the plaintiff father.

The father had obtained the CPL on an ex parte motion, claiming beneficial ownership of a condo registered in the daughter's name, the proceeds of which were allegedly used to purchase the properties.

The court found that while the father had a reasonable claim to an interest in land, he failed to make full and fair disclosure of material facts on the ex parte motion, including the source of the down payment and a letter stating the funds were a gift.

Balancing the equities, including the non-disclosure and the availability of damages as a remedy, the court discharged the CPL without security.

This appeal concerned a failed residential property transaction due to substantial water damage occurring shortly before closing.

The purchasers (respondents) sued the vendors (appellants) for breach of the agreement of purchase and sale (APS), seeking return of their deposit and damages.

The vendors counterclaimed, alleging repudiation by the purchasers.

Both parties moved for summary judgment.

The motion judge found in favour of the purchasers, ruling that the damage was 'substantial' under s. 18 of the APS, entitling the purchasers to terminate, and that the vendors had not acted in good faith.

The vendors appealed, arguing procedural unfairness regarding the pleading of s. 18, errors in factual findings, and incorrect damages calculation.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings on s. 18 and good faith, but reduced the damages awarded by the cost of an engineering report.

The appellant's property was destroyed by fire caused by tenants extracting marijuana resin, and his insurer denied coverage based on exclusion clauses.

After the loss, section 129.1 of the Insurance Act was enacted, limiting such exclusions for innocent persons.

The appellant sought to apply this new provision retroactively to his claim.

The Court of Appeal dismissed the appeal, affirming the motion judge's decision that section 129.1 does not apply retroactively to losses that occurred before its enactment.

The court distinguished between retrospective and retroactive application of legislation, emphasizing the strong presumption against retroactivity.

The defendant, Yin Liang, appealed an Associate Justice's order granting the plaintiff, Suevilia Development Corporation, leave to amend its Statement of Claim to add Ms. Liang's husband, Hanyu Zhao, as a defendant and to plead claims of fraudulent misrepresentation and fraudulent conveyance.

The appeal court reviewed the Associate Judge's decision on the applicable tests under Rule 26.01 and Rule 5.04(2) of the Rules of Civil Procedure, including issues of non-compensable prejudice, limitation periods, and whether the proposed amendments disclosed a reasonable cause of action.

The court found no palpable and overriding error in the Associate Judge's decision regarding the limitation period or the tenability of the fraudulent misrepresentation and fraudulent conveyance claims.

The appeal was dismissed.

The defendants brought a motion under section 47 of the Construction Act to discharge the plaintiff's construction lien, vacate the certificate of action, and dismiss the action.

The motion was based on four grounds: the oral contract was prohibited by the Statute of Frauds, lack of corroboration under the Evidence Act section 13, lack of certainty in the contract's essential elements, and no claim for unjust enrichment.

The court dismissed the motion, ruling that the Construction Act is a complete code for construction liens, allowing for oral contracts as an exception to the Statute of Frauds.

It also found that the Evidence Act section 13 did not apply as the action was not against the deceased's estate, the oral contract had sufficient certainty, and the unjust enrichment claim was an alternative remedy not subject to a section 47 motion.

Costs were awarded to the plaintiff.

This decision concerns the costs of a motion brought by the Regional Municipality of Halton following a previous decision regarding "Wagg Orders" and the scope of disclosure.

The plaintiff sought clarification on sharing materials for a wrongful dismissal action.

The court found that the defendants' "purported consent" to the plaintiff's motion was not genuine and forced the plaintiff to proceed.

Although the plaintiff sought substantial indemnity costs, the court awarded partial indemnity costs of $9,894.76, finding the defendants' conduct, while not egregious enough for substantial indemnity, was ill-advised and necessitated the motion.

The court applied Rule 57 factors in determining the appropriate costs.

The Regional Municipality of Halton brought a motion seeking to amend two prior "Wagg Orders" to explicitly include a related wrongful dismissal action (the "Ohashi Wrongful Dismissal Action") within their scope for the purpose of document disclosure.

The defendants, the Ohashis, opposed the motion, arguing it was unnecessary and that declaratory relief was inappropriate.

The court, applying Rule 59.06(1) of the Rules of Civil Procedure, found that the omission of the wrongful dismissal action from the previous order was an oversight.

Consequently, the court granted the amendment, allowing Halton to produce the documents obtained under the Wagg Orders in the Ohashi Wrongful Dismissal Action, emphasizing that questions of relevance and admissibility would be determined by the trial judge.