Robert E. Charney

The plaintiffs sought summary judgment for damages and release of a deposit following a failed real estate transaction, while the defendant counterclaimed for the deposit's return.

The transaction failed because the defendant discovered undisclosed TransCanada Pipeline (TCPL) easements, including one under the pool and cabana, which allowed TCPL to demand their removal and was subject to ongoing litigation.

The court found that the plaintiffs failed to disclose material information regarding the easements and related litigation, which materially affected the property's use and violated the Agreement of Purchase and Sale's title provisions.

Summary judgment was granted in favour of the defendant, ordering the return of the deposit.

The defendant moved for summary judgment on a dental negligence claim, arguing the plaintiff failed to provide a proper expert report, and sought to strike several paragraphs from the statement of claim.

The court found the plaintiff's expert affidavit deficient in form and raised concerns about the admissibility of underlying reports due to potential conflicts with the Regulated Health Professions Act.

The court deferred a final decision on the summary judgment motion, ordering further submissions on the admissibility of evidence.

However, the court granted the motion to strike numerous paragraphs from the statement of claim that were deemed irrelevant or inconsistent with the RHPA.

The applicant, Ying Tsuen Tiao, brought an application to declare a fraudulent discharge of her first mortgage void and to rectify the land register by restoring her mortgage to its original first priority position.

The respondents, Dino Leone and Jeanette Leone, had fraudulently discharged the applicant's mortgage and subsequently registered new mortgages.

While the Director of Titles agreed to delete the fraudulent discharge, they argued the applicant's mortgage should be reinstated in a lower priority.

The court applied the theory of deferred indefeasibility, finding the Leones were fraudulent persons and the subsequent mortgagees were intermediate owners.

The court ordered the fraudulent discharge void and the applicant's mortgage restored to first priority, ahead of the subsequent mortgages.

The father brought a motion regarding the residence and schooling of the parties' daughter, which was subsequently settled.

The parties could not agree on costs.

The mother sought full indemnity costs, arguing the settlement mirrored her early offers and the status quo.

The father sought partial recovery costs, claiming his motion was necessary due to the mother's "self-help" actions and that the settlement reflected his offers.

The court, acknowledging the difficulty in determining success in settled cases, found that the final settlement left the parties in the same position as before the father's motion.

The court awarded the mother partial recovery costs of $8,500, finding her counsel's billed hours excessive but recognizing the father's motion had no substantive effect on the children's arrangements.

The respondent mother brought a contempt motion against the applicant father for alleged non-compliance with a final order regarding parenting plan arbitration, residency schedule, passports, access calls, and life insurance.

The court dismissed the contempt motion, finding that the high standard of proof beyond a reasonable doubt for wilful disobedience was not met for most allegations.

However, the court exercised its powers under Rule 1(8) of the Family Law Rules to grant the mother specific relief, including clarifying the parenting schedule, dispensing with the father's signature for a Canadian passport, clarifying telephone access, and ordering proof of life insurance.

The father was ordered to pay costs to the mother due to his unreasonable conduct.

The plaintiff, Tanya Curé, moved for an order to have her action tried together with an action commenced by the defendant, Helen Kilitzoglou.

The defendant opposed, arguing that her action was ready for trial and consolidation would cause prejudice due to the plaintiff's action not being ready for discovery.

The court dismissed the motion, finding that the legal issues in the two actions were distinct, the risk of inconsistent factual findings was not compelling given a prior detailed decision and the potential application of issue estoppel, and the defendant's right to discovery in the plaintiff's action outweighed the advantages of consolidation, especially considering the defendant's action was scheduled to begin shortly.

The applicant, Walter Burnat, sought an interim order for directions regarding the personal care and living arrangements of his 80-year-old mother, Olga Burnat, who suffers from moderate to severe dementia and requires 24-hour supervision.

Walter proposed moving Olga to a retirement residence in Richmond Hill, while the respondent, Mary Bosworth, Olga's daughter, advocated for Olga to remain in her Whitby home with a proposed home care plan.

The court, exercising its authority under the Substitute Decisions Act, 1992, found Walter's proposal offered greater certainty of care and granted the interim order for Olga to reside at the retirement residence until a suitable local facility becomes available.

The applicant sought an order to discharge a mortgage, arguing that the underlying debt had been paid in full.

The respondents contended that an oral agreement existed for the mortgage to be assigned and held as security for the applicant's performance of other contractual obligations.

The court dismissed the application, finding that the transfer of charge to the respondent occurred *before* the final payment to the original mortgagee, meaning the assigned mortgage was not a nil-balance mortgage.

The court determined that the remaining issues, involving the interpretation of an agreement of purchase and sale and a disputed oral agreement, were not suitable for resolution by application under Rule 14.05(3)(e) and (f) or s. 12(8) of the Mortgages Act, and should proceed by way of statement of claim.

A request for a Certificate of Pending Litigation was also dismissed as the title to the land was not in dispute in the application.

The defendants brought a motion for leave to appeal to the Divisional Court from an order dismissing their motion to discharge a Certificate of Pending Litigation (CPL) obtained ex parte by the plaintiff.

The plaintiff, a second mortgagee, alleged a constructive trust and fraudulent conduct following a power of sale that resulted in a shortfall.

The court applied the strict test for leave to appeal under Rule 62.02(4) and found no conflicting decisions, no good reason to doubt the correctness of the motion judge's findings on triable issues or material non-disclosure, and no error in principle in the exercise of discretion to maintain the CPL.

The motion for leave to appeal was dismissed.

The defendants sought leave to appeal to the Divisional Court from an order dismissing their motion to discharge a Certificate of Pending Litigation (CPL).

The court applied the two-part test for leave under Rule 62.02(4), requiring either a conflicting decision on a matter of principle or good reason to doubt the correctness of the order combined with matters of general importance.

The court found no conflicting decisions and no basis to doubt the correctness of the lower court's findings regarding the plaintiff's claim for a constructive trust, the right to trace funds, or the absence of material non-disclosure.

Furthermore, the court found no error in the exercise of discretion to maintain the CPL.

The application for leave to appeal was dismissed.

The plaintiff, Trisan Construction, brought a motion for summary judgment against its former lawyer, Mark Epstein, for professional negligence and breach of contract in a construction lien collection matter.

The court found Epstein negligent in failing to properly identify the limitation period, delaying the issuance and service of the statement of claim, and delaying the notice of garnishment, but concluded these failures did not cause damages due to the client's insolvency.

However, the court found Epstein negligent for failing to advise Trisan about a potential breach of trust claim under s.13 of the Construction Lien Act against the directors and officers of Bianchi.

The court could not determine causation or quantify damages for this specific negligence without expert evidence and directed a trial of an issue on this point.

The respondent solicitor brought a motion opposing the confirmation of an Assessment Officer's report that reduced his legal fees by $8,079.02.

The solicitor argued the Assessment Officer made palpable and overriding errors, including double-counting deductions and misapprehending evidence regarding time dockets.

The Superior Court of Justice agreed, finding the Assessment Officer erred in principle by reducing fees for a lack of dockets when detailed accounts were provided, and by making sweeping, unsupported reductions to preparation time.

The court substituted its own determination, overturning the majority of the reduction but maintaining a $1,084.79 deduction for a legal assistant's undocumented time.

The applicants, operators of an event centre, were charged under a municipal by-law for operating an adult entertainment establishment without a licence after hosting a male dancer event.

They brought an application seeking a declaration that the by-law's definition of 'adult entertainment establishment' was void for vagueness and violated s. 7 of the Charter.

The Superior Court of Justice reviewed the Supreme Court of Canada's vagueness jurisprudence, distinguishing it from earlier Court of Appeal decisions that required absolute certainty.

The court held that the by-law's language, which closely tracked the Municipal Act, 2001, provided sufficient guidance for legal debate and delineated an area of risk.

The application was dismissed.

The defendant brought a motion for security for costs under Rule 56.01(1)(d), arguing there was good reason to believe the corporate plaintiff had insufficient assets in Ontario to pay a costs award.

The court found the defendant failed to meet the initial low threshold, as the plaintiff's representative was never asked directly about the corporation's assets or financial statements during discovery.

The motion was dismissed.

The defendants brought a motion to remove the plaintiff's law firm due to a conflict of interest.

A partner at the firm had acted for one of the defendants in two unrelated mortgage transactions, receiving confidential financial information, while the firm was concurrently representing the plaintiff in an action against that defendant.

The court applied the bright line rule against concurrent representation of adverse interests and found that the firm failed to conduct a proper conflicts check.

The motion was granted and the law firm was disqualified from representing the plaintiff.

The defendant brought a motion to compel the plaintiff to attend a defence psychiatric assessment after the action had been set down for trial.

The plaintiff had served a new psychiatric expert report after the matter was set down, prompting the defendant's request to obtain a responding report.

The court granted leave under Rule 48.04 to bring the motion, finding it just in the circumstances.

The court ordered the plaintiff to attend the psychiatric assessment, emphasizing trial fairness and the defendant's right to respond to the plaintiff's new expert evidence with an expert of their choosing.

The plaintiff brought two motions in an ongoing estate dispute against his sisters.

The first motion sought leave to amend his Statement of Claim to further particularize allegations of conversion of estate assets, which was granted on consent.

The second motion sought to lift a stay of proceedings on a related Application to Pass Accounts to allow for an amendment to a Notice of Objection and to have common issues tried together.

The court dismissed the second motion, finding it unnecessary to lift the stay as the trial judge in the main action would decide the common issues, which would be binding on the Application by issue estoppel, and the stay would automatically lift upon the final disposition of the action.

The plaintiffs purchased a plaster sculpture attributed to Auguste Rodin and loaned it to the defendant art gallery to obtain a charitable tax credit.

The authenticity of the sculpture was subsequently challenged by the Musée Rodin, causing the tax certification to fail.

The defendant terminated the loan agreement and requested the plaintiffs arrange for the sculpture's return.

When the plaintiffs failed to do so, the defendant shipped the sculpture to a storage facility, during which it sustained severe damage.

The plaintiffs sued for damages, and the defendant counterclaimed for storage fees.

The court found that the loan agreement had terminated and the defendant was acting as an involuntary bailee.

As an involuntary bailee, the defendant's duty was only to refrain from intentional or reckless damage.

The court held the defendant met this standard by using the original packing crate, especially given the sculpture's lack of proven authenticity and value.

The plaintiffs' claim was dismissed, and the defendant's counterclaim for storage fees was granted.

The accused was charged with trafficking heroin and claimed he was acting as a police agent under the direction and control of an unnamed detective, relying on the exemption in s. 4 of the Controlled Drugs and Substances Act (Police Enforcement) Regulation.

The Crown brought a motion arguing there was no air of reality to this defence.

The court reviewed the accused's testimony and found that he had explicitly rejected the detective's instructions and acted on his own initiative when arranging the drug transaction.

The court concluded there was no evidential foundation that the accused was acting under the direction and control of a police officer, and ruled the defence would not be put to the jury.

The respondent husband brought a motion to reduce an interim spousal support order of $16,848 per month to $7,000 per month, arguing a substantial change in circumstances due to business losses and capital erosion.

The court dismissed the motion, finding that the original interim order explicitly anticipated the husband would need to encroach on capital to maintain the marital standard of living due to his failure to provide adequate financial disclosure.

The court held that the heavy onus to vary a temporary order was not met and that final financial determinations should be left to the impending trial.