Paul Neil Feldman

The moving defendant sought to set aside a noting in default in a contract action for unpaid real estate commission arising from a commercial leasing arrangement.

Applying r. 19.03(1) of the Rules of Civil Procedure and the Franchetti/Kisel factors, the court held that the delay was adequately explained by prior counsel's health-related incapacity and reporting failures, that the moving party acted promptly once the default judgment motion came to its attention, and that the claim was straightforward.

The court found no material prejudice to the plaintiffs if the matter proceeded on the merits and held that the moving party had at least an arguable defence based on lack of contractual privity.

The noting in default was set aside and the moving party was granted 30 days to serve and file its statement of defence.

The moving party brought a motion under Rule 59.06(2)(a) to set aside a trial judgment, alleging the responding parties committed fraud by submitting false dump tickets for excavated soil.

The court dismissed the motion, finding no evidence of false representations, no evidence of loss, and no new material facts that could not have been discovered prior to trial.

The court awarded full indemnity costs to the responding parties, noting the moving party's unfounded allegations of fraud and the lack of merit to the motion.

The appellants appealed a trial judgment and costs decision resulting from four consolidated actions related to a construction project.

The appellants argued the trial judge erred by admitting hearsay evidence (trucking invoices and dump tickets) without requiring the truck drivers to testify, and by misapprehending evidence regarding soil quality and excavation.

The Divisional Court dismissed the appeal, finding the trial judge properly admitted the documents under the principled approach to hearsay through viva voce testimony, especially since the appellants had not objected at trial and had taken an 'all or nothing' approach by alleging fraud.

The court also found no palpable and overriding error in the trial judge's factual findings regarding the poor soil conditions and the necessity of trucking soil offsite.

The appeal regarding the apportionment of storage costs for a Ferrari given as compensation was also dismissed.

This appeal concerned the personal liability of an individual who signed dishonoured cheques under an unregistered trade name.

The appellant, a directing mind of several corporations, argued he did not intend personal liability, believing he was signing on behalf of a corporation.

The Court of Appeal affirmed the motion judge's decision, holding that under section 131(1) of the Bills of Exchange Act, signing a bill in a trade name or assumed name incurs personal liability, especially when the name is not registered to the corporate entity.

The court emphasized the Act's purpose of ensuring certainty in negotiable instruments.

The appeal was dismissed with costs.

The plaintiff brought a motion for summary judgment against the defendants for unpaid invoices.

The corporate defendants consented to judgment, leaving the issue of the personal liability of the sole director, who signed cheques in a trade name that were returned for non-sufficient funds.

The court found the director personally liable under the Bills of Exchange Act because the cheques did not display the name of the legal corporate entity, and signing in a representative capacity using only a trade name does not exempt the signer from personal liability.

Summary judgment was granted against the director for $140,621.52.

The plaintiff, an auto parts supplier, brought a motion for summary judgment against corporate defendants operating auto body repair facilities and an individual defendant for unpaid invoices.

The corporate defendants consented to judgment for the principal amount, leaving the issues of pre-judgment interest and costs for the court.

The court found that the credit application stipulated a 2% monthly interest rate on unpaid accounts and ordered pre-judgment interest at this rate from December 1, 2019.

The issue of costs was reserved, and the motion against the individual defendant was adjourned by consent.

The plaintiff moved to set the action down for trial before completing mandatory mediation to avoid administrative dismissal under Rule 48.14.

The court treated the motion as a status hearing.

The court dismissed the request to bypass mediation but granted an extension of time to set the action down, finding the plaintiff adequately explained the delay and the defendant suffered no non-compensable prejudice.

The appellant appealed a motion judge's order requiring it to return a pre-authorized debit payment of $83,734.05 made post-NOI (Notice of Intention to file a proposal) to the respondent, less amounts owing for post-NOI fuel purchases.

The motion judge found the payment constituted a prohibited remedy under section 69(1) of the Bankruptcy and Insolvency Act.

The Court of Appeal allowed the appeal, finding the motion judge erred by failing to consider whether the parties had entered into a legitimate agreement to pay past debts in order to secure future fuel supply.

The matter was remitted for a new hearing.

The case addresses complex estate, property, and support issues arising from a three-way joint tenancy, an erroneous probate transfer, discoverability, and unpaid child support.

The plaintiff, Sui Sun Wong, abandoned his family and failed to pay child support, while the defendant, Mee Fong Wong, maintained the property.

The court found Sui's oral promise to transfer his property interest unenforceable but determined that Sui's transfer of his interest to his mother in trust severed his joint tenancy, leaving Mee and the mother as joint tenants.

Consequently, Mee inherited the mother's share upon her death.

The court also ruled that Mee's claims were not statute-barred due to fraudulent concealment and her vulnerability.

Mee was awarded unpaid child support arrears with compound interest, to be set off against Sui's share of the property sale proceeds, not exceeding his interest.

The plaintiff, Unlimited Motors Inc., sought to continue a $30 million action for breach of contract and other claims after it had lapsed, requiring a status hearing under Rule 48.14 of the Rules of Civil Procedure.

The court found the plaintiff's explanation for a 2.5-year delay unacceptable, primarily due to a deliberate choice to prioritize another lawsuit.

The plaintiff also failed to provide robust evidence demonstrating an absence of non-compensable prejudice to the defendant or trial fairness, despite the defendant's own inaction on its counterclaim.

The motion to continue the action was dismissed, and the plaintiff was ordered to pay costs.

The plaintiff brought a motion for summary judgment for unpaid invoices relating to custom millwork installed in two homes renovated by the defendants.

The court found summary judgment appropriate for part of the claim, awarding the plaintiff damages for work actually delivered, less a set-off for conceded deficiencies.

The court dismissed the remainder of the claim for undelivered work due to the plaintiff's failure to provide evidence of its actual damages or costs incurred.

The issue of whether a trust was created under the Construction Lien Act from the sale proceeds of the homes was directed to a mini-trial due to insufficient evidence on the record.

This costs endorsement followed successful summary judgment motions by the Bachly Defendants, the Township of Oro-Medonte, and the third party W.R. Hodgson, dismissing the plaintiffs' grading claims and the Bachly Defendants' third-party claim against Hodgson.

The court assessed the reasonableness and proportionality of the costs sought by the successful parties against the plaintiffs.

It determined that the plaintiffs were liable for the costs of the Bachly Defendants and the Township, and also for the third party Hodgson's costs, applying principles that allow for third-party costs against an unsuccessful plaintiff when the third-party proceedings were a natural and inevitable consequence of the plaintiff's action.

The court fixed specific amounts for partial indemnity costs for each successful party.

The plaintiffs brought claims for lot grade deficiencies against the defendants (Bachly Investments Inc., 411931 Ontario Ltd. o/a Heights of Moonstone, The Township of Oro-Medonte) and a third party claim was brought by the Bachly Defendants against W.R. Hodgson.

The defendants and third party brought summary judgment motions to dismiss these claims, primarily arguing they were statute-barred by the Limitations Act, 2002, and that there was no evidence of professional negligence against Hodgson.

The court granted the summary judgment motions, finding that the plaintiffs' grading claims were statute-barred as they knew or ought to have known of the issues by summer/fall 2010, and that the plaintiffs failed to provide expert evidence establishing a breach of standard of care or causation against Hodgson.

The court also found that a prior release only covered a specific driveway issue and not the broader grading claims.

In a family dispute over vacant land held in common, the applicant sought an order for sale under the Partition Act after the co-owners could not agree on disposition.

The principal opposing respondents argued for dismissal or, alternatively, partition rather than sale.

The court held that co-owners have a prima facie right to partition or sale, subject only to limited discretion where malice, oppression, vexatious intent, or equivalent hardship is shown.

Because the evidence indicated further partition might be foreclosed by municipal by-laws and prior severances, sale was more advantageous to the parties.

A reference was ordered to a Master to value the lands and supervise the sale, with no costs awarded.

The corporate plaintiff, acting through unrepresented agents, brought multiple motions seeking relief from various orders in a long-standing mortgage default dispute.

The plaintiff sought to appeal a Court of Appeal costs order, extend time to appeal a Master's security for costs order, obtain leave to appeal a judge's order permitting a power of sale, and extend time to oppose confirmation of a Master's reference report.

The Divisional Court dismissed the requests regarding the Court of Appeal order, the security for costs order, and the power of sale order.

The court granted an extension of time to oppose the Master's report, but only on strict terms requiring payment of all outstanding costs and security into court.

Following a six‑day reference hearing concerning mortgage accounting and alleged defaults, the court had determined that the mortgages were in default and that the plaintiff owed a substantial sum on two outstanding mortgages, subject to minor overpayments.

The defendants sought costs of the reference.

Applying s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed the relative success of the parties and their conduct during the proceeding.

Although the defendants were largely successful, the court reduced the amount sought to reflect their partial lack of success and some contribution to the length of the hearing.

Costs were fixed on a partial indemnity basis.

The plaintiff mortgagor sought relief from forfeiture and challenged the accounting and enforcement of seven mortgages held by the defendants.

A reference was ordered to determine whether defaults existed at the time notices of sale were issued and to calculate the amounts owing.

The court found technical defaults existed for all seven mortgages due to factors including unpaid property taxes, lack of insurance, and missed payments.

However, several charges claimed by the mortgagee—including legal fees and certain administrative charges—were disallowed due to insufficient evidentiary support.

The court recalculated the mortgage accounts and determined the correct balances, finding both overpayments and underpayments across the different properties.

The appellants appealed a judgment, arguing only one point regarding fresh evidence.

The Court of Appeal dismissed the appeal, finding that the fresh evidence would not have changed the result.

The amount in the fresh evidence was consistent with the internal allocation of payments found by the motion judge and did not affect the finding that interest was being paid on all three loans, which defeated the limitations defence.

The appellant purchaser appealed a trial judgment finding an Agreement of Purchase and Sale null and void.

The agreement was conditional upon the purchaser being approved to assume the first mortgage.

The trial judge found that the condition was not fulfilled, the purchaser had no intention of assuming the mortgage, and the condition could not be waived.

The Court of Appeal dismissed the appeal, finding ample support in the record for the trial judge's conclusions.

The appellant appealed a motion judge's order to sell a commercial property under the Partition Act.

The appellant claimed an oral agreement existed where the respondent relinquished her 50% interest in exchange for grocery store inventory.

The Divisional Court found the motion judge erred by not allowing a further affidavit and by not ordering a trial of an issue regarding ownership, as the doctrine of part performance might defeat the Statute of Frauds.

The appeal was allowed in part, and a trial of an issue was ordered.