Ronald Birken

The appellants appealed a summary judgment decision regarding the operation of a limitation period.

The sole issue was whether the respondent repudiated the agreement when it demanded repayment in March 2008.

The Court of Appeal agreed with the motion judge's analysis and dismissed the appeal, awarding costs to the respondent.

The defendant solicitors brought a motion for summary judgment to dismiss the plaintiffs' solicitor negligence claim as statute-barred under the Limitations Act, 2002.

The plaintiffs cross-moved, arguing the limitation period did not commence until a 2009 court decision confirmed the error in a real estate statement of adjustments.

The court found that a reasonable person in the plaintiffs' position would have known of the potential claim when a related lawsuit was commenced in September 2006.

The court granted the defendants' motion, dismissing the action as statute-barred and an abuse of process, and awarded costs to the defendants.

The appellants appealed a motion judge's decision dismissing their claim for a readjustment to the purchase price paid to the respondent.

The appellants argued that the respondent's potential right to a reassignment of the mortgage created a cause of action against the financial corporation.

The Court of Appeal dismissed the appeal, finding no connection between the right to reassignment and any obligation to be bound by the agreement of purchase and sale.

In an addendum to an appeal decision released on January 8, 2010, the Court of Appeal for Ontario fixed the costs of the dismissed appeal.

The respondent was awarded costs fixed in the sum of $40,000, inclusive of disbursements and GST.

The cross-appeal was dismissed without costs.

The appellants, limited partners in a condominium complex, appealed a trial judgment dismissing their claims for negligent misrepresentation and breach of fiduciary duty against the respondent lender, and rejecting their defences to the respondent's shortfall action following power of sale proceedings.

The appellants argued that the respondent failed to inform them of property tax arrears when renewing the mortgage.

The Court of Appeal dismissed the appeal, finding that the respondent's relationship was solely with the general partner, and it owed no duty of care or fiduciary duty to communicate directly with the limited partners.

The appellant vendor appealed an order granting specific performance of a real estate contract to the respondent purchaser.

The appellant argued the respondent was disentitled to equitable relief due to 'unclean hands' for swearing a false affidavit regarding his status as a nominee, and that the property was not objectively unique.

The Court of Appeal dismissed the appeal, finding the respondent's conduct did not prejudice the appellant and the property was uniquely suited to the intended commercial use, making damages an inadequate remedy.

The appellants appealed a judgment enforcing a mortgage, raising issues regarding the enforceability of unregistered standard terms, accounting errors, and a stay due to US bankruptcy proceedings.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's findings of fact, noting the standard terms were agreed to, and confirming the claim was not stayed by the foreign bankruptcy.

The trial judge's decision to fix costs was also upheld.

The appellant, a lawyer, represented the respondent Crossen in matrimonial litigation against the respondent Mirkopoulos.

Crossen terminated the retainer and settled with Mirkopoulos, with the agreement stating each party would bear their own costs.

The appellant sued both for her unpaid fees of $217,773.24, alleging collusion.

The trial judge dismissed the collusion claim but found Mirkopoulos liable in contract, reducing the fees to $50,000.

The Court of Appeal allowed Mirkopoulos's cross-appeal, finding the contract claim was not pleaded and unsupported by evidence.

The Court dismissed the appellant's appeal on the collusion claim, finding the settlement was not a secret arrangement designed to defeat the solicitor's claim.

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

The appellant argued that the timing of an $80,000 payment and a letter of reference were essential terms not agreed upon.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the timing of payment was peripheral to the contract's formation, and refusing to hear the letter of reference issue as it was not raised below.

The plaintiffs sought leave to appeal an interlocutory order dismissing their motion under s. 12(3) of the Mortgages Act to pay disputed mortgage funds into court pending trial.

The dispute arose over adjustments to the purchase price of subdivision lots based on frontage.

The Divisional Court found no reason to doubt the correctness of the motion judge's discretionary decision, which was based on a holistic assessment of the relative equities and the plaintiffs' failure to establish an arguable case.

The motion for leave to appeal was dismissed with substantial indemnity costs awarded to the defendants.

The appellants appealed a motions judge's refusal to set aside a default judgment.

The motions judge found that the appellants failed to move as soon as possible and gave no reasonable explanation for the delay.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's exercise of discretion.

The court also declined to interfere with the judgment based on an accounting argument over a $5,000 sum and noted it had no jurisdiction over post-judgment arguments regarding amounts owing.

The appellant appealed a trial judgment finding that an agreement with the respondent was not unconscionable and that he could not use a customer list to solicit clients after terminating their relationship.

The respondents cross-appealed the findings that a non-compete clause was unenforceable and that the appellant was not a fiduciary.

The Court of Appeal dismissed both the appeal and the cross-appeal, upholding the trial judge's findings on all issues.

The court awarded costs of $7,500 to the respondent.

The appellant appealed a summary judgment order granted by the motion judge.

The Court of Appeal found no error in the motion judge's conclusion that there was no genuine issue for trial.

The appeal was dismissed with costs fixed at $5,000 on a partial indemnity basis.

The appellant appealed an order dismissing her motion for production of documents from non-parties.

The motion judge found that the respondent had no ownership interest or authority over the non-party corporation, the documents were not germane to the litigation, and it would not be unfair to proceed to trial without them.

The Court of Appeal found no error in the motion judge's application of the test or exercise of discretion and dismissed the appeal.

The appellant challenged the validity of a bank charge renewal agreement dated October 31, 2000.

However, she did not challenge the validity of the prior renewal agreement or the underlying bank charge.

The Court of Appeal held that even if the October 2000 renewal were set aside, the respondent bank was entitled to partial summary judgment for possession due to the failure to discharge the bank charge when it matured in October 2000.

The appeal was dismissed.

The appellant appealed a summary judgment dismissing its claim regarding a commercial lease.

The appellant argued that a lease was assigned to it or that an oral agreement for a five-year lease was reached.

The Court of Appeal upheld the motions judge's finding that there was no valid assignment in writing as required, and that the evidence did not support an oral agreement.

The appeal was dismissed with costs.

The moving party brought a motion to quash the responding parties' appeal, arguing that the appeal did not fall within sections 193(a) to (d) of the Bankruptcy and Insolvency Act and therefore required leave.

The Court of Appeal disagreed, finding that the appeal fell within section 193(c) because the order appealed from would declare the moving party a creditor and allow it to prove a claim in excess of $3 million, meaning the property involved exceeded $10,000.

The motion to quash was dismissed with costs fixed at $5,000.

The complainant alleged she was sexually harassed by two co-workers and that her employer engaged in reprisal by transferring her after she complained.

The Board of Inquiry found that the complainant had initiated the incident by showing the co-workers pornographic materials, but that the co-workers subsequently sexually harassed her when one dropped his pants in front of her.

The Board dismissed the complaints against the employer and its president, finding they had reasonably transferred her to separate her from the co-workers and did not terminate her employment.

The two co-workers were ordered to pay $150 each in general damages.