Paul H. Starkman

The plaintiffs (purchasers) and defendants (vendors) entered into an Agreement of Purchase and Sale for a condominium.

Prior to closing, the vendor's agent caused extensive water damage to the property while replacing plumbing.

The purchasers refused to close without a substantial holdback to assess and repair the unknown extent of the damage, which the vendor rejected.

Both parties brought motions for summary judgment.

The court found that the water damage was substantial, the purchasers acted reasonably and in good faith, and the vendor failed to act in good faith by initially refusing an independent inspection.

The purchasers' cross-motion for summary judgment was granted, the agreement was validly terminated, the deposit was ordered returned, and damages for additional living expenses were awarded.

The landlord brought a motion to quash the tenant's appeal from a Landlord and Tenant Board eviction order, or alternatively to lift the automatic stay of eviction.

The tenant had not paid rent for over a year.

The court found that while the tenant raised a legitimate issue of procedural fairness regarding his inability to participate in the Board hearing, the appeal was ultimately devoid of merit because he had no legal justification for the persistent non-payment of rent.

The court also found the appeal to be an abuse of process brought solely to obtain an automatic stay.

The appeal was quashed and the stay lifted.

The moving party brought a motion for leave to appeal the order of Ferguson J. dated February 2, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000.

Lisa Snowball sought leave to appeal a Divisional Court order that had refused leave to appeal a Superior Court order.

The Regional Municipality of Halton moved to strike Snowball's motion for leave to appeal as frivolous, and Snowball brought a cross-motion to adduce fresh evidence.

The Court of Appeal found no merit in Snowball's motion for leave to appeal, reiterating that there is generally no appeal from an intermediate court's refusal of leave unless jurisdiction was mistakenly declined.

The fresh evidence did not alter the merits.

The Court granted Halton's motion to strike Snowball's motion for leave to appeal and denied Snowball's motion to adduce fresh evidence, awarding costs to Halton.

The plaintiff brought a motion for summary judgment on two defaulted loans totaling $1,000,000 made to the corporate defendant and guaranteed by the individual defendant.

The defendants argued that a $300,000 payment made to the plaintiff's sole director was a partial repayment of the loans, while the plaintiff claimed it was a separate personal loan.

The court granted summary judgment but found that the $300,000 payment constituted a pre-payment on the principal of the loans, reducing the judgment amount accordingly.

The defendants' counterclaim was dismissed.

The applicant sought leave to appeal orders that dismissed its cross-motion requiring the respondent to post the amount of a foreign arbitral award and ordered the applicant to post security for costs.

The Divisional Court granted leave to appeal, finding reason to doubt the correctness of the application judge's decision because it failed to consider Article 36 of the International Commercial Arbitration Act, which governs the grounds for refusing recognition of an award and the specific circumstances for ordering security for costs.

The court noted the matter's importance to international comity.

The Court of Appeal for Ontario dismissed an appeal and subsequently addressed costs.

The respondents sought costs for the appeal and for pre-appeal motions that did not proceed.

The appellants argued for no costs due to divided success or novelty, or a reduction.

The court found the respondents wholly successful on appeal, rejecting claims of divided success or novelty.

It awarded $15,000 for the appeal costs and a reduced amount of $5,000 for the motions, acknowledging costs were incurred despite the motions not being argued.

This endorsement addresses two motions before a single judge of the Court of Appeal for Ontario: one by the Regional Municipality of Halton to strike a motion for leave to appeal brought by Lisa Snowball, and another by Lisa Snowball for leave to file fresh evidence on her motion for leave to appeal.

The judge determined that a single judge of the court lacks jurisdiction to hear either motion, as issues of jurisdiction regarding an appeal and motions for leave to appeal, as well as motions to adduce fresh evidence, must be determined by a panel of the court under the Courts of Justice Act and the Rules of Civil Procedure.

Consequently, the motions were ordered to be transferred to a panel for hearing and determination.

The plaintiff appealed a Master's order requiring him to post $20,000 in security for costs.

The plaintiff argued the Master erred in finding he was not ordinarily resident in Ontario and in concluding the order was just.

The Superior Court of Justice dismissed the appeal, finding ample evidence supported the Master's factual conclusion regarding residency, including the plaintiff's limited time in Ontario, lack of assets, and intention to return to Malaysia.

The court also held the Master made no error of law, having properly balanced the plaintiff's access to justice against the defendants' need for protection from an uncollectible costs award.

The appellants sought a declaration that the respondents' foreclosure on pledged shares was void for non-compliance with the notice requirements of the Personal Property Security Act (PPSA) and sought an order for the return of the shares.

The application judge dismissed their application, finding the respondents acted within a contractual right of foreclosure outside the PPSA and denied equitable relief.

On appeal, the Court of Appeal found that while s. 17.1(2) of the PPSA, which allows secured parties with control over investment property to deal with collateral as per the security agreement, does not permit foreclosure without notice, the respondents had, in fact, provided adequate notice under Part V of the PPSA.

The appeal was dismissed.

This is an appeal from a Master's order removing Paul Starkman and Starkman Barristers LLP as lawyers of record for the plaintiff/appellant, 8657181 Canada Inc., on the basis that Starkman was likely to be a material witness in the litigation.

The underlying action was a solicitor's negligence claim brought by the plaintiff against its former lawyers.

The court dismissed the appeal, affirming the Master's decision that Starkman's dual role as advocate and likely witness on issues of mitigation and damages created an irreconcilable conflict, impairing the administration of justice.

The moving parties brought a motion for leave to appeal from the order of Pollak J., which dismissed an earlier order of Master Jolley.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the amount of $37,773.07.

The plaintiff brought a motion for summary judgment against the defendant for $1,200,000 plus interest, based on a guarantee agreement.

The defendant argued the guarantee was limited to specific collateral, contingent on construction completion, that no proper demand was made, and that the action was an abuse of process.

The court found the guarantee was indeed limited to the collateral, but was not contingent on construction, a proper demand had been made, and the action was not an abuse of process.

The defendant moved to strike the plaintiff's claim for damages for wrongful distraint under Rule 21.01(1)(b).

The plaintiff sought damages for relational economic loss, arguing it had a possessory or proprietary interest in restaurant equipment distrained by the defendant landlord from a previous tenant.

The court found that because the defendant had withheld consent to assign the lease to the plaintiff, the plaintiff could not establish a possessory or proprietary interest in the chattels.

The motion was allowed and the claim was dismissed without leave to amend.

The defendants brought a motion for security for costs against the plaintiff, a Malaysian citizen and former international student at the University of Toronto.

The plaintiff sued the defendants for defamation regarding allegations of sexual harassment.

The court found that the plaintiff was ordinarily resident outside of Ontario, as he had no family, property, or ongoing employment in the province and spent most of his time in Malaysia.

Applying a holistic approach, the court ordered the plaintiff to post $20,000 in security for costs.

A case conference was held to establish a timetable for an upcoming motion for summary judgment.

The court endorsed the schedule agreed to by all counsel, setting deadlines for the delivery of materials, cross-examinations, and factums.

The appellant lawyer and his firm appealed an order directing the assessment of 14 accounts rendered to the respondent over an 11-year period.

The Court of Appeal allowed the appeal in part, finding that the application judge erred in finding 'special circumstances' under s. 4 of the Solicitors Act to justify assessing the older, previously paid accounts.

The assessment was limited to the final three accounts, which were in dispute regarding the allocation of settlement funds, and the respondent's corporation was added as a client on the assessment.

The plaintiff insured sought coverage after his tenants caused an explosion and fire while attempting to extract marijuana resin.

The insurer denied coverage based on a marijuana exclusion clause.

The plaintiff argued that a subsequent amendment to the Insurance Act (s. 129.1) protecting innocent insureds should apply.

The court granted summary judgment to the insurer, finding that the marijuana exclusion clause applied irrespective of the amendment because it excluded a specific use of the property regardless of the insured's knowledge.

Furthermore, the court held that the amendment could not be applied retrospectively as it would affect the insurer's vested contractual rights.

Following the dismissal of the plaintiff's claim for a real estate commission after a mini-trial, the defendants sought costs.

The defendants had made a Rule 49 offer to settle for $10,000, which the plaintiff rejected.

The court found that the plaintiff's decision to proceed to trial despite the clear evidence and the settlement offer justified the costs claimed.

The court awarded the defendants $143,931.31 in costs, representing partial indemnity up to the date of the offer and substantial indemnity thereafter.

The moving party, a defendant in the action, brought a motion for leave to appeal.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.