Rahul Shastri

This endorsement addresses two motions and sets directions for a future case conference in two related proceedings: a family law application (FS-15-406705) and a guardianship proceeding (FS-17-21568).

The court reserved decision on the motions and outlined issues for the upcoming case conference, including the impact of the "deemed undertaking" rule on evidence and productions, and status reports on disclosure and mediation.

Counsel were directed to collaborate on a proposed order regarding the deemed undertaking rule.

The applicant, Joanne Chuvalo, brought a motion for directions in a guardianship application concerning George Chuvalo.

She sought extensive disclosure of medical, financial, and legal records, and orders to revoke powers of attorney for property and personal care held by George's children, Mitchell and Vanessa Chuvalo.

The court narrowed the scope of disclosure, limiting medical records to periods surrounding the creation of the powers of attorney and dismissing most requests for financial and legal records as premature or disproportionate.

The primary issues were identified as the validity and potential revocation of the 2014 and 2016 powers of attorney.

Costs were reserved to the judge hearing the main guardianship application.

The applicant condominium corporation sought to set aside an arbitration award that dismissed its claim against the respondent unit owners for allegedly breaching a Section 98 Agreement regarding renovations.

The applicant argued the award was obtained by fraud based on new evidence from former board members.

The court dismissed the application, finding the applicant failed to prove fraud, did not act with due diligence, and the new evidence would not have changed the outcome.

The court also denied leave to appeal, concluding the arbitrator's interpretation of the agreement was a question of mixed fact and law, and any legal errors would not significantly affect the parties' rights.

The applicant, George Chuvalo, brought a family law proceeding.

The respondent wife argued that the proceedings should be stayed under s. 10(2) of the Divorce Act to allow for reconciliation.

The court held a trial on the threshold issue of whether the applicant had the capacity to decide to reconcile or divorce.

Relying on expert medical evidence, the court found that the applicant lacked the capacity to decide whether to reconcile, as he could not appreciate the consequences of such a decision.

The Public Guardian and Trustee was appointed as his litigation guardian.

The appellant appealed from a motion judge's order dismissing his motion to set aside a default judgment dated July 4, 2016.

The appellant had been served with a statement of claim alleging he had provided an oral personal guarantee for $50,000 on a loan agreement.

The appellant failed to defend the action and was noted in default, resulting in a default judgment being entered.

The motion judge dismissed the appellant's motion to set aside the default judgment, finding that the appellant had acknowledged his debt through communications with the respondent and had deliberately delayed responding to the claim.

The Court of Appeal upheld the motion judge's decision, finding no overriding or palpable error or error of law in the exercise of discretion.

The defendant moved to set aside a default judgment of $50,000 and vacate a notice of garnishment.

The defendant had acknowledged the debt and offered a repayment plan but failed to defend the action.

He ignored the default judgment for over six months until garnishment was served on his corporation.

The court applied the five-factor test for setting aside default judgments and found that the defendant deliberately delayed and failed to provide a plausible explanation.

The motion was dismissed, and costs of $5,500 were awarded to the plaintiff.

The moving party, Men's Fire, sought to be added as a party and to vary an interlocutory injunction that prevented interference with the plaintiff's archaeological assessments on its property.

The court added Men's Fire as a party on consent but dismissed the motion to vary the injunction.

The court found no evidence of an active land claim against the property, no failure by the plaintiff to comply with legislation, and no duty on the private landowner or the municipality to consult with the moving party under the circumstances.

The appellant appealed a trial judgment awarding damages for breach of contract regarding the value of shares in a startup insurance brokerage.

The trial judge had determined the fair market value of the shares based on net earnings, relying on an unsworn affidavit submitted after trial, rather than reopening the trial for proper valuation evidence.

The Divisional Court found that the trial judge erred by failing to reopen the trial to adduce objective evidence of fair market value, as the contractual provision relied upon did not apply to an early termination.

The appeal was granted and the quantification of damages was remitted to the trial judge.

Following the dismissal of an action on summary judgment concerning alleged nondisclosure in a land sale, the successful defendants sought costs on a partial indemnity basis.

The plaintiffs had alleged that the vendor Crown breached duties of good faith and honesty by failing to disclose Indigenous land-related claims affecting the property.

The court reviewed the principles governing costs under Rule 57.01 and the Courts of Justice Act and rejected the argument that the Crown’s costs should be discounted because government counsel are salaried.

The court held the defendants’ claimed fees and disbursements were reasonable given the complexity of responding to allegations of bad faith and the extensive factual investigation required.

Costs of $383,745.81 on a partial indemnity basis were awarded to the defendants.

The defendants moved for summary judgment to dismiss the plaintiffs' action arising from a real estate transaction.

The plaintiffs, real estate developers, purchased surplus government land and later faced blockades by aboriginal protesters.

The plaintiffs alleged the defendants breached a duty of good faith and failed to disclose latent defects by not informing them of prior monetary claims and a lawsuit by the Six Nations regarding the land.

The court granted summary judgment dismissing the action, finding no duty to disclose the claims under the contract, no evidence of dishonesty to trigger a breach of good faith, and that the claims did not constitute a latent defect as they did not render the land uninhabitable or dangerous.

In a trial arising from a property dispute between former romantic partners and a family member, the court rejected the plaintiff's claim that the defendants held the property in trust under a valid trust agreement.

The court also rejected the defendants' position that the property had been given as an unconditional and irrevocable gift.

Applying credibility findings and the Statute of Frauds, the court concluded title should nonetheless be transferred to the plaintiff because the defendants failed to prove a gift, while ordering the plaintiff to reimburse the defendants for renovation-related expenses established on the evidence.

The plaintiff was required to pay $31,840 within the time fixed by the court.

The respondents built an addition to their home that encroached on a private right-of-way shared with the appellants.

The right-of-way was granted for vehicular ingress and egress.

The application judge found that the encroachment did not substantially interfere with the appellants' ability to use the laneway for its granted purpose and dismissed the application.

The Court of Appeal upheld the decision, confirming that an encroachment on a private right-of-way, even by a permanent structure, is only actionable if it substantially interferes with the dominant owner's reasonable use of the right-of-way.

The defendants moved to vacate a prior judgment and a notice of garnishment, arguing that the underlying debt had been fully satisfied pursuant to a subsequent settlement agreement.

The plaintiffs opposed and cross-moved to add the garnishees as defendants, alleging fraudulent preference.

The court found that the parties had entered into a valid settlement agreement and that the defendants had paid the settlement amount in full.

Consequently, the court vacated the judgments and the notice of garnishment, and dismissed the plaintiffs' cross-motion.

Following a dispute over costs after the underlying proceeding, the applicants sought costs on a substantial indemnity basis, while the respondents argued for a significantly reduced amount and objected to certain disbursements.

The court held that substantial indemnity costs were not warranted because there was no reprehensible conduct in the litigation.

On a partial indemnity basis, the court reviewed the hours claimed by counsel and rejected arguments that the applicants’ legal team engaged in excessive duplication, although some preparation time was considered excessive.

The court also allowed disbursements for professional witnesses, finding that accountants called as fact witnesses were entitled to compensation for their time in preparing affidavits, attending cross‑examinations, and testifying.

Total costs payable were fixed at $58,034 inclusive of HST.

The applicants, owners of adjacent properties, sought a declaration that the respondents unlawfully obstructed a shared right-of-way by constructing an addition to their home.

The right-of-way was granted for the purpose of vehicular ingress and egress to the applicants' garages.

The court found that while the addition permanently occupied a portion of the right-of-way, it did not substantially interfere with the applicants' ability to access their garages by vehicle.

The application was dismissed, as the encroachment did not constitute an actionable interference with the specific limited purpose of the right-of-way.

The applicants sought an order permitting their accountants to finalize draft closing statements following the sale of shares in a technology company.

The respondents argued that an adjustment for allegedly obsolete inventory should be considered and requested appointment of a third accountant under the purchase agreement.

The court found that the respondents failed to raise the inventory issue within the contractual 15‑day period for commenting on draft closing statements and had not engaged their own accountants to trigger the dispute‑resolution mechanism.

The court rejected arguments of waiver and declined to grant equitable relief from forfeiture under s. 98 of the Courts of Justice Act, finding the respondents’ conduct unreasonable and unsupported by evidence of a valid claim.

The application was granted and the draft closing statements were ordered finalized.

Following dismissal of a motion for an injunction seeking to enforce a non‑competition agreement, the court addressed the issue of costs.

The moving party had sought to enjoin former advisors and a financial services firm from operating a competing branch, but failed to establish an enforceable restrictive covenant or a serious issue to be tried.

The successful defendants sought partial indemnity costs.

The court held that one group of defendants was entitled to costs but denied costs to the corporate defendant due to its pre‑litigation conduct, which the court described as outrageous and contributing to the litigation.

Costs of $40,000 inclusive were awarded to the remaining defendants.

The plaintiff sought interlocutory injunctions enforcing non‑competition and non‑solicitation clauses in a 2004 agreement against several financial advisors and a related investment dealer after the advisors opened a competing branch nearby.

The court applied the RJR‑MacDonald test and considered whether the restrictive covenants were reasonable in geographic scope, temporal scope, and scope of prohibited activity.

Although the geographic scope was arguably reasonable and there was a serious issue to be tried regarding temporal scope, the court found the activity restrictions overly broad and therefore unreasonable.

As a result, the plaintiff failed to establish the required strength of case to justify interlocutory injunctive relief.

The balance of convenience also weighed against granting the injunction because a competing branch would operate regardless.

The motion for interlocutory injunctions was dismissed.

The appellants appealed a motion judge's decision dismissing their motion to stay the respondents' litigation based on an arbitration clause in their shareholder agreements.

The respondents argued the parties never reached an agreement on the contents of a schedule, meaning no arbitration agreement existed.

The Court of Appeal allowed the appeal and stayed the litigation, noting that the respondents had not sought a declaration that the agreements were void ab initio, the agreements contained severability clauses making the arbitration clauses separate contracts, and under the Arbitration Act, an arbitral tribunal may rule on its own jurisdiction.

The litigation was stayed except with respect to three companies that were not parties to any shareholder agreement.

The appellants abandoned their appeal.

As the parties could not agree on costs, the Court of Appeal fixed the costs of the abandoned appeal payable to the respondents at $7,500, explicitly rejecting the respondents' request for substantial or full indemnity costs.