Robert Daniel Malen

The Court of Appeal dismissed the appeal for the reasons given by the Divisional Court and awarded fixed costs to the respondent.

The decision addresses two competing motions for the appointment of representative counsel for investors in a receivership proceeding involving Sussman Mortgage Funding Inc. The court reviews the procedural background, the need for representative counsel, and the competing proposals from Aird & Berlis LLP and Paliare Roland Rosenberg Rothstein LLP.

The court ultimately appoints Aird & Berlis LLP as representative counsel, finding their approach and fee structure preferable for efficiency, transparency, and certainty.

This endorsement addresses three related matters: the appointment of B. Riley Farber Inc. as receiver over the property of the respondents, the granting of a Mareva injunction against Sanford Sussman, and the scheduling of a motion to appoint representative counsel for investors in mortgages brokered and administered by Sussman Mortgage Funding Inc. The court finds the appointment of a receiver to be in the public interest and just and convenient, and grants the Mareva injunction on consent.

The endorsement also sets out the background of the proceedings, the issues to be determined, and the reasons for the orders made.

This decision concerns three related matters: the appointment of a receiver over the assets of Sussman Mortgage Funding Inc. and related companies, the granting of a Mareva injunction against Sanford Sussman, and the scheduling of a motion to appoint representative counsel for investors.

The court finds the appointment of B. Riley Farber Inc. as receiver to be in the public interest and grants the Mareva injunction on consent.

The decision addresses the statutory and common law bases for receivership, the public interest in protecting investors, and the coordination of proceedings involving multiple stakeholders.

The applicant, DAA Holdings Ltd., sought a determination of minimum rent under a lease agreement for years 11-15, arguing the respondent, Teranet Inc., breached its duty to negotiate in good faith.

Teranet contended that since no agreement was reached, an "Inflation Factor" default provision should apply, resulting in a much lower rent increase.

The court found that Teranet failed to negotiate in good faith, effectively stonewalling negotiations and making no reasonable counter-proposals based on fair market rates.

The application was granted, and the minimum rent was set as proposed by DAA (with a slight adjustment conceded by DAA's counsel).

The Court of Appeal for Ontario determined it lacked jurisdiction to hear an appeal originating from an application under the Land Titles Act, as appeals under that Act lie to the Divisional Court.

Consequently, the appeal was transferred to the Divisional Court pursuant to the Courts of Justice Act.

No costs were awarded.

The defendants brought a motion to dismiss the plaintiff's action with prejudice due to the plaintiff's repeated failures to participate in litigation.

The plaintiff failed to attend examinations for discovery, did not file an affidavit of documents, and failed to comply with a court order requiring them to appoint new counsel or file a notice of intention to act in person.

The court found the plaintiff's conduct demonstrated an intention to abandon the action and granted the dismissal under Rules 3.04(4)(b)&(c) and 34.15(1)(b) of the Rules of Civil Procedure, with costs to be determined.

This case addresses the complex interaction between the Land Titles Act and the Registry Act concerning the expiry of restrictive covenants on real property.

The central issue was whether a notice of claim, registered under the Registry Act to extend a restrictive covenant, remained effective after the property was converted to the land titles system.

The court determined that the date of registration for the purpose of the Land Titles Act's 40-year expiry rule becomes the date the notice of claim was filed, thereby extending the covenant's validity.

The court dismissed the applicant's request to delete a caution and set aside a prior order that had removed the covenant, ruling in favour of the respondent who benefited from the covenant.

This is an appeal and cross-appeal concerning a failed real estate transaction.

The appellant vendor sued the respondent purchaser for breach of an Agreement of Purchase and Sale (APS) and sought loss of bargain damages.

The motion judge found the respondent liable but erred in calculating damages by relying on expert evidence instead of the difference between the APS price and the actual resale price.

The Court of Appeal allowed the appeal, holding that where a vendor reasonably mitigates damages by reselling the property in an arm's length transaction, the loss of bargain damages are the difference between the original APS price and the resale price, and expert evidence is not required.

The cross-appeal, which challenged the pre-judgment interest rate and the deduction of interest on the deposit, was dismissed.

The defendants brought a motion to strike the statement of claim and dismiss the action due to the plaintiff's failure to advance the litigation, including failing to attend an examination for discovery.

The plaintiff's counsel also sought to be removed from the record due to an irreparable breakdown in the solicitor-client relationship, as the plaintiff had retrieved its file and ceased communication.

The court granted the motion to remove counsel and gave the plaintiff 60 days to appoint new counsel or file a notice of intention to act in person, failing which the defendants could renew their motion to strike the claim.

The appellant appealed an order dismissing her request to remove the court-appointed Liquidator of a corporation and approving the Liquidator's accounts.

The appellant argued the Liquidator was improperly aligned with the respondent Estate and that the motion judge should have drawn an adverse inference from the lack of evidence explaining communications between them.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings or his refusal to draw an adverse inference, and upheld the approval of the accounts.

The respondent brought a motion to remove the court-appointed liquidator of a real estate company, alleging a conflict of interest and collaboration with the applicant Estate.

The liquidator sought approval of its activities, fees, and an extension of a listing agreement for the sale of properties.

The court dismissed the motion to remove the liquidator, finding no evidence of bad faith or blatant intentional action contrary to the interests of the parties.

The court approved the liquidator's fees and the extension of the listing agreement, noting the fees were fair and reasonable.

This application concerned the interpretation of a will to determine whether a parcel of land was bequeathed to two sons as joint tenants or tenants in common, and whether a subsequent agreement between the sons severed any potential joint tenancy.

The applicant, Martin's estate trustee, sought a declaration that Martin's estate was entitled to an undivided one-half interest in the property, which the respondent, Bill, had appropriated.

The court applied the "armchair rule" and considered extrinsic evidence, concluding that the testator intended to create a tenancy in common.

Alternatively, the court found that the agreement between the brothers to divide the property constituted a severance of any joint tenancy that might have existed.

The application was granted, declaring Martin's estate entitled to a one-half interest.

The appellants appealed a summary judgment decision granting the respondent judgment on its claim without set-off or stay pending the counterclaim.

The appellants raised three grounds of appeal: (1) that the motion judge failed to apply the appropriate test on summary judgment regarding equitable set-off and the interconnection of the claims; (2) that the motion judge erred in granting partial summary judgment; and (3) that the motion judge erred in piercing the corporate veil to impose personal liability on the individual appellant.

The Court of Appeal upheld the lower court decision on all grounds, finding that the claims were not so closely connected as to warrant equitable set-off, that no inconsistency issues arose from the partial judgment, and that the circumstances supported personal liability based on the individual's control and direction of the company's actions.

The plaintiff, N.K.P. Painting Inc., contracted with the defendants, Lamb Dundas Corp. and 319 Carlaw Inc., for painting and wall coverings.

Disputes arose over invoices for "extras." The defendants brought a motion for partial summary judgment regarding 37 specific invoices, arguing that agreements had been reached on their payment.

The plaintiff opposed, arguing that no final agreements were made and that the motion was inappropriate given the need to assess credibility in the context of the entire litigation.

The court dismissed the defendants' motion for partial summary judgment, finding that a genuine issue of credibility existed regarding the alleged agreements, which could only be fully assessed at trial.

Costs were reserved to the trial judge.

The court determined costs following a successful application where oppression and breach of fiduciary duty were found, leading to a corporate wind-up.

The applicant sought substantial indemnity costs, which were awarded due to the seriousness of the misconduct, including breaches of statutory and fiduciary duties, self-dealing, and obstructive litigation conduct by the respondents.

The court also directed that the costs of the litigation be borne solely by the individual respondents, with adjustments made during the corporate winding-up process to prevent the applicant from indirectly bearing the respondents' costs.

A motion to strike brought by the respondents was also dismissed with costs to the applicant.

The plaintiff, Distributions Katrina Inc., sought summary judgment for $132,105.07 for goods sold and delivered.

The defendants, Enroute Imports Inc. and Vincent P. Pileggi, resisted, asserting a defence of equitable set-off and a $5,000,000 counterclaim for alleged improper business practices.

The court granted summary judgment to the plaintiff for the undisputed debt, finding the equitable set-off inapplicable due to insufficient connection between the claims.

The plaintiff's motion to dismiss the counterclaim was denied, allowing it to proceed to trial, but the court refused to stay the execution of the summary judgment.

The applicant, as estate trustee, brought an oppression application alleging breach of fiduciary duties and corporate opportunity appropriation by the individual respondents concerning the "Greystar" transaction and mismanagement of Di Battista Gambin Developments Limited (DBG).

The court found that the individual respondents breached their fiduciary duties and statutory obligations under the OBCA by appropriating a corporate opportunity (Markham property) for Greystar's benefit and engaging in self-dealing through a $3 million mortgage from DBG to Greystar without proper disclosure or shareholder approval.

The directors also abdicated their responsibilities, leading to an unjustified accumulation of cash.

The court concluded that the conduct was oppressive and unfairly prejudicial, warranting a remedy of either winding-up DBG and Whitwood or a buy-out of the applicant's interests by the DiBattista respondents at fair market value, along with an accounting of benefits from the Greystar transaction.

The appellant appealed a Superior Court decision dismissing its application for compensation regarding Block 203, a land parcel transferred to the City of Brampton pursuant to a Subdivision Agreement.

The appellant argued that Block 203 was conveyed on condition that it be used as a road and sought compensation after the City did not use it for that purpose some 20 years later.

The Court of Appeal upheld the lower court's decision, finding that the Subdivision Agreement contained no condition requiring reconveyance or compensation for Block 203, unlike other parcels covered by the agreement.

The court also dismissed the appellant's challenge to the costs award of $53,667.

The plaintiffs brought a motion to remove Friedman Law Professional Corporation (FLPC) as lawyers of record for the defendants due to an alleged conflict of interest.

FLPC had previously represented the plaintiff Keith Alexander in a family law application involving complex family and business disputes.

The court found that the prior retainer was sufficiently related to the current defamation action, which involved allegations of abuse and extortion related to the same family disputes.

The court concluded that FLPC likely acquired relevant confidential information during the prior retainer and ordered FLPC removed as counsel of record to protect the integrity of the justice system.