R. Leigh Youd

The court considered motions for costs personally against George Windsor, who commenced proceedings on behalf of Gilles Jozias Overtveld and Gi-Las Management and Maintenance Ltd. without proper authority.

The action was found to be duplicative, meritless, and a waste of resources.

The court fixed costs on a substantial indemnity basis against Mr. Windsor personally, disallowed him from charging legal fees to the plaintiffs, and set out the principles for awarding costs in such circumstances.

The applicant sought a Norwich order against two lawyers to obtain transactional information regarding real estate purchases and transfers involving a judgment debtor, in order to enforce a $369,072.61 judgment.

The respondents opposed the motion, arguing the applicant did not meet the test for a Norwich order and that the information was protected by solicitor-client privilege.

The court granted the Norwich order, finding that the applicant met the test and that the requested transactional information, such as the source of funds and true ownership of the properties, was not presumptively protected by solicitor-client privilege.

The court ordered the respondents to produce the non-privileged information and established a process for reviewing any specific claims of privilege.

The appellants appealed a motion judge's decision enforcing a settlement agreement.

The core issue was the interpretation of an email clause regarding the direction of share purchase monies, specifically whether the phrase 'Subject to any contrary direction by His Honour' allowed the motion judge to direct funds into court for creditors.

The Court of Appeal upheld the motion judge's interpretation, finding it was open to him based on the record.

The appellants' application to introduce fresh evidence was dismissed as irrelevant or already dealt with by the settlement terms.

The appeal was dismissed with costs.

The plaintiffs alleged that the defendant, an officer of their corporation, fraudulently and without authorization registered two mortgages against their properties.

They also sued the lawyer who registered the mortgages for negligence and the mortgagees for relying on the mortgages despite alleged red flags.

The court dismissed the action, finding that the officer had actual authority to bind the corporation under its by-laws, the plaintiff was aware of and benefited from the mortgages as part of a scheme to avoid foreign creditors, the lawyer met the standard of care, and the mortgagees were protected by the indoor management rule and the Land Titles Act.

The defendant property manager brought a motion for summary judgment to dismiss the plaintiff condominium corporation's action as a nullity.

The defendant argued that the plaintiff failed to comply with the notice requirements under s. 23(2) of the Condominium Act, 1998 before commencing the action.

The court dismissed the motion, finding that the action against the property manager for breach of contract and negligence was not the type of action caught by s. 23(1) of the Act, and therefore the notice requirements did not apply.

Furthermore, the court held that the action commenced with the filing of the Statement of Claim, not the Notice of Action, and that the plaintiff had provided sufficient notice to the owners prior to filing the Statement of Claim.

The court issued its third and final set of reasons following a hearing on June 27, 2018, confirming an interim ruling and addressing costs.

The court drew negative inferences against Greyslone Ltd., Belview Management Ltd., and Mr. Czerlau due to evasive conduct and lack of corporate authority, disallowing claims of privilege over solicitors' files.

It ordered all solicitors' files (Assuras, Lof, Brown) to be delivered to an Independent Supervising Solicitor for review and production of relevant documents to the plaintiff.

The court awarded substantial indemnity costs of $19,878.53 against Mr. Czerlau, Greyslone Ltd., and Belview Management Ltd. jointly and severally, and partial indemnity costs of $13,626.70 against Ms. Assuras, also jointly and severally with the others to that extent.

The plaintiff, Canadian National Railway Company (CN), brought a motion to compel the production of files and examination for discovery of three non-party lawyers: Mr. Brown, Mr. Lof, and Ms. Assuras.

The motion arose from a Mareva and Anton Pillar order and a subsequent summary judgment against Greyslone and Belview, which were found to have no legal status at the time of certain transactions and failed to account for $661,000.

Ms. Assuras, counsel for Greyslone and Belview, opposed the motion, asserting privilege, while Mr. Lof and Mr. Brown took no position.

The court found Mr. Czerlau's (who instructed Ms. Assuras) testimony to be evasive and misleading, and inferred that Greyslone and Belview were not acting at arm's length to Mr. Holmes, suggesting they were shams.

Consequently, the court proposed to draw negative inferences against Greyslone and Belview's bona fides, disallow claims of privilege, and ordered the production of the entire files of Ms. Assuras, Mr. Lof, and Mr. Brown to the plaintiff, subject to a 14-day period for further submissions.

During a negligence trial against their former lawyers, the plaintiffs attempted to lead evidence on claims not explicitly pleaded in their statement of claim, specifically concerning property at the "Holdway mill" and the promptness of pursuing those claims.

The defendants objected on grounds of relevance.

The court ruled that the statement of claim, as pleaded, did not encompass these additional claims and therefore precluded the plaintiffs from exploring these issues without an amendment to their pleadings.

The court emphasized the fundamental principle that a litigant must have notice of the case against them and clarified that raising an issue in a defence does not elevate it to a claim.

The plaintiff, a mortgage lender, suffered a loss when a required postponement of a prior charge was not obtained, leaving it as a third mortgagee rather than a first mortgagee.

The title insurer acknowledged coverage and paid the bulk of the loss after the property was sold under power of sale.

The plaintiff sued to recover approximately $40,000 in disputed property maintenance expenses and legal fees incurred by its independently retained counsel, as well as a determination on the interest calculation.

The court reduced the claimed expenses and legal fees, finding that some costs lacked strict proof, involved personal benefit to the plaintiff's principal, and were unnecessary given the insurer's early concession of coverage.

The court also ruled that interest was to be calculated and compounded semi-annually.

A former corporate officer brought a motion for summary judgment or partial summary judgment seeking dismissal of claims in a counterclaim alleging participation in a fraudulent kickback scheme involving commission payments under a produce distribution program.

The moving party argued the claims were unsupported by evidence and barred by the limitation period.

The court held that the dispute involved a complex factual matrix intertwined with claims proceeding to trial against other parties and required credibility determinations not suitable for summary judgment.

The court also found an issue of discoverability regarding the limitation period.

Leave was granted to amend the counterclaim to add a claim for gross negligence, as the amendment was tenable and caused no uncompensable prejudice.

The plaintiff moved to set aside a default judgment granted on the defendant’s counterclaim and to withdraw deemed admissions arising from a failure to respond to a request to admit.

Applying the common law test for setting aside default judgment, the court considered whether the motion was brought promptly after discovery of the judgment, whether the default was adequately explained, and whether there was an arguable defence on the merits.

The court accepted that the moving party only became aware of the judgment years later and that counsel’s medical issues contributed to the failure to respond.

The court also emphasized the importance of civility between counsel, noting that notice of the intention to seek default could have avoided the situation.

Finding an arguable defence and limited prejudice to the responding party, the court set aside the default judgment and the deemed admissions.

A cheque‑cashing company sought to recover losses arising from a fraudulent mortgage scheme and the negotiation of a bank draft bearing a forged endorsement.

The plaintiff alleged negligence and fraud against multiple parties involved in the mortgage transaction, including the property owner, a lawyer, a lender, and a relative of the homeowners.

The court found that the homeowners were not involved in the fraud and dismissed claims against them and other defendants, including the lawyer and lender.

The court declined to recognize a novel duty of care owed by the drawer of a bank draft to a subsequent negotiator and held that the plaintiff’s loss arose from the strict liability tort of conversion when the draft with a forged endorsement was negotiated.

Liability was established only against the relative who participated in the mortgage fraud.

The applicant purchaser sought a declaration that a vendor take-back mortgage was paid in full, arguing that a price adjustment for non-developable land reduced the balance to zero.

The agreement of purchase and sale required the calculation of non-developable land to occur at the five-year anniversary of the mortgage, but the applicant missed this deadline, claiming it was impossible to determine due to ongoing environmental studies regarding an endangered minnow species.

The court dismissed the application, holding that time was of the essence and the unpredictable nature of the development approval process did not excuse the failure to adhere to the contractually stipulated timeline.

The respondent vendors' cross-application for payment of the outstanding mortgage balance was granted.

The applicant sought a declaration that a vendor take-back mortgage was paid in full, arguing that a price adjustment clause in the Agreement of Purchase and Sale reduced the outstanding balance to zero.

The agreement stipulated that the price adjustment, based on the ratio of non-developable land, was to be calculated at the end of the fifth year of the mortgage term.

The applicant missed this deadline, arguing it was impossible to determine the non-developable land due to ongoing environmental consultations regarding an endangered minnow species.

The court dismissed the application, holding that time was of the essence and the failure to invoke the price adjustment mechanism at the stipulated time precluded any adjustment.

The plaintiffs commenced an action for professional negligence and breach of contract arising from a commercial real estate transaction.

After two years, a status notice was issued, and the plaintiffs requested a status hearing to prevent the action from being dismissed for delay.

The defendants opposed the continuation of the action, arguing the plaintiffs failed to adequately explain the delay or demonstrate an absence of prejudice.

The Master reviewed the conflicting jurisprudence on status hearings and concluded that, while the delay was problematic, the plaintiffs provided a sufficient explanation and the defendants suffered no non-compensable prejudice.

The action was allowed to proceed subject to a strict timetable.

A land developer sought a declaration that a municipality could not impose future development charges on undeveloped land because of a prior development agreement from 1980.

The municipality refused to recognize a credit for development charges previously paid, and the developer’s appeal to the Ontario Municipal Board was dismissed as out of time under Ontario Regulation 82/98.

The court held that the regulation required developers to apply for recognition of development charge credits before the October 31, 1999 sunset deadline.

Paragraph 17.2 of the regulation did not create a separate process for resolving conflicts between development agreements and development charge by-laws.

The application was also barred by issue estoppel because the same issue had been determined by the tribunal.

The court addressed a motion concerning the handling of surplus proceeds from the sale of a property subject to litigation.

The parties were ordered to deliver signed directions to the mortgagee instructing that any surplus proceeds remaining after discharge of the mortgage be paid into court to the credit of the action.

The court further ordered that if the mortgagee instead paid the funds directly to either party, those parties must pay the surplus received into court.

The order was made without prejudice to any future motion seeking payment of funds out of court, and the court approved a consent litigation timetable.