Ronald B. Moldaver

The appellant made an assignment in bankruptcy in 1994 and was discharged in 1996.

Years later, the trustee in bankruptcy learned the appellant may have failed to disclose an interest in real property and obtained an order reappointing the trustee.

On appeal, the Court of Appeal held that the bankruptcy judge erred by deciding the matter in a summary proceeding given the conflicting evidence and credibility issues.

The appeal was allowed and a trial of an issue was ordered to properly determine the ownership of the property.

The appellant, a standardbred owner and trainer, appealed the Executive Director's decision to revoke a stay of his suspension following a second positive drug test on a horse he trained.

The appellant sought relief because he had already entered horses to race in New Jersey.

The Commission temporarily granted the appeal for two days to allow New Jersey officials to determine whether the horses could race, after which the revocation of the stay would take effect.

The New Jersey officials ultimately scratched the horses.

The appellant appealed an order striking his Amended Statement of Claim against a law firm without leave to amend.

The appellant, a minority shareholder, alleged that the directors committed oppression by diverting corporate funds to pay the law firm's legal fees, and sought an order for the law firm to refund the fees.

The Divisional Court dismissed the appeal, finding that the motion to strike was not barred by issue estoppel and that the amended pleading did not disclose a tenable cause of action against the law firm for knowing receipt of a benefit from oppression.

The appellant landlord appealed an order permitting a receiver to take over the tenant's position under a commercial lease.

The landlord argued the motion judges exercised their discretion in an unprincipled way and that there was material non-disclosure on a without notice motion.

The Court of Appeal dismissed the appeal, finding the receivership order justly balanced the interests of the employees and the landlord, as the landlord was receiving rent and had not shown prejudice.

The court also found no palpable and overriding error in the finding of no material non-disclosure.

The appellant bank appealed an order dismissing its action on the basis of res judicata.

The Court of Appeal upheld the motion judge's finding that a prior determination by another judge, which concluded the property was validly held in trust, subsumed the issue of whether the trust was a sham.

The appeal was dismissed with costs.

The appellant general contractor entered into a construction contract and a subcontract with the respondent for a fire protection system.

The appellant was contractually obligated to obtain all-risks property insurance and fire insurance but failed to do so.

A flood occurred due to the respondent's admitted negligence.

The appellant paid the owner for the damages and sought to recover the amount from the respondent.

The Court of Appeal dismissed the appeal, applying the principle that a contractual undertaking to secure property insurance operates as an assumption of the risk of loss or damage caused by the peril to be insured against.

The appellant's failure to obtain the insurance precluded its claim against the respondent.

The appellant challenged the sale of a cemetery by the Ontario Realty Corporation to a private company proposing to build a crematorium, seeking judicial review of the Director's decision to issue a certificate of air approval and the ORC's environmental assessment.

The Divisional Court dismissed the application.

On appeal, the Court of Appeal affirmed the Divisional Court's decision, finding that the Director's decision was not patently unreasonable and that the ORC correctly concluded it was not required to apply its class environmental assessment process to the purchaser's subsequent planning actions.

The appeal was dismissed with costs.

The appellant appealed a decision granting an application for partition and sale of commercial properties under the Partition Act.

The appellant argued that the scope of discretion to refuse partition and sale should be broadened beyond circumstances of malice, oppression, and vexatious intent.

The Court of Appeal dismissed the appeal, affirming that co-tenants have a prima facie right to compel partition or sale, which should only be refused in limited circumstances including hardship amounting to oppression.

The court found no palpable and overriding error in the motion judge's exercise of discretion.

The appellant appealed an order of the Superior Court of Justice, arguing the judge lacked jurisdiction and erred in awarding costs.

The Court of Appeal dismissed the appeal, finding that the appellant's consent effectively amended the right to seek the court's assistance under the arbitration agreement, which, along with Rule 14.05, provided ample jurisdiction.

The court found no error in principle in the costs award.

The appellant appealed a trial judge's order permitting the respondent to withdraw an admission regarding damages after two and a half days of trial.

The trial judge had ordered a mistrial and awarded the appellant costs thrown away to allow them to consider their position.

The Court of Appeal dismissed the appeal, finding that the trial judge's order was a discretionary one that caused no prejudice to the appellant.

The appellant landlord appealed a trial judgment that applied a 35 per cent 'betterment' discount to damages awarded for the respondent tenant's breach of repair and restoration covenants in a commercial lease.

The Court of Appeal held that while the lease's 'reasonable wear and tear' exception applied, the tenant bore the burden of proving the extent to which the damages fell within this exception.

Because the tenant failed to adduce evidence supporting the 35 per cent discount, the Court removed the discount, increasing the landlord's damages.

The Court also allowed the tenant's cross-appeal in part, reducing the interest rate to the Courts of Justice Act rate and reducing the costs award to reflect the actual rates billed to the landlord.

The appellant appealed a trial judgment finding him jointly and severally liable for over $325,000 wrongfully obtained from an elderly relative's estate.

The trial judge found the appellant knowingly assisted other family members in breaching their fiduciary duties by preparing a power of attorney and commissioning a land transfer tax affidavit while knowing the relative was incompetent.

On appeal, the appellant argued the respondents lacked standing under the Trustee Act and that his actions did not cause the loss.

The Court of Appeal dismissed the appeal, refusing to entertain the standing and limitation arguments raised for the first time on appeal, and upholding the finding of knowing assistance.

A cross-appeal seeking occupation rent from the appellant was also dismissed.

The applicant, a residents' association, sought judicial review of decisions by the Ministry of the Environment and the Ontario Realty Corporation relating to the sale of a former psychiatric hospital cemetery to a private purchaser who intended to build a crematorium.

The applicant argued that the MOE Director erred in issuing an air approval without considering fine particulate emissions and that the ORC failed to conduct a proper environmental assessment under the Environmental Assessment Act.

The Divisional Court dismissed the application, finding that the Director's decision was not patently unreasonable given the lack of existing standards for fine particulates at the time, and that the ORC reasonably applied its Class Environmental Assessment, which did not require assessing the private purchaser's subsequent planning actions.

The appellant tenant breached a commercial lease by abandoning the premises.

The respondent landlord subsequently leased the property to a new tenant, with a 10-month overlap of the original lease term.

The tenant appealed the trial judge's calculation of damages, arguing the landlord received a benefit from avoiding a lengthy vacancy period.

The landlord cross-appealed regarding the deduction of tax consultant fees and the apportionment of rent-free periods and improvements.

The Court of Appeal dismissed the main appeal, finding the tenant's mitigation argument was not pleaded and relied on speculation.

The cross-appeal was allowed in part, permitting the landlord to deduct the 50% contingency fee paid to a tax consultant to obtain a property tax rebate.

The appellant appealed an order of the lower court judge, who had dismissed their initial appeal for abuse of process due to undue delay in prosecution.

The Court of Appeal found no error in the lower court judge's conclusion and dismissed the appeal.

The respondent was awarded costs of $5,000.

A motion for leave to cross-appeal to add a party to the lower court's order was also dismissed.

The appellants appealed a judgment granting the respondent's application for the sale of five commercial properties under the Partition Act.

The parties were co-tenants, and the respondent, holding a minority interest, refused to consent to the appellants' management and leveraging plans after the appellants acquired their majority interest.

The Divisional Court dismissed the appeal, affirming that a co-tenant has a prima facie right to compel a sale under the Davis test, and that the respondent's conduct was not malicious, oppressive, or vexatious, but rather a predictable response to a business relationship breakdown.

The respondents on appeal submitted a bill of costs following the appeal.

They sought costs on a substantial indemnity basis, relying on the trial judge's award of solicitor-client costs.

The Court of Appeal declined to award substantial indemnity costs but recognized the complexity of the matter.

The court fixed the costs payable by the appellants to the respondents at $25,000, inclusive of disbursements and GST.

The appellants appealed a trial judgment finding them liable for various fees withheld from a deceased partner's estate.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellants breached their fiduciary duties, failed to make full disclosure, and were not entitled to guarantee fees, management fees, or legal retainers on a quantum meruit basis or otherwise.

The court affirmed that under the partnership agreement and the Partnerships Act, management fees could not be varied without the consent of all partners, which the estate had not provided.

The plaintiff sought leave to appeal an order declaring a mistrial and awarding solicitor and client costs thrown away to the defendants, following the plaintiff's late production of documents during trial.

The court found the order was interlocutory.

The motion for leave was brought out of time, and the court declined to extend the time due to an unexplained delay of over two years and a lack of settled intention to appeal.

Furthermore, the court held that even if time were extended, leave would be denied as the costs order was discretionary and there was no conflicting decision or good reason to doubt its correctness.

The motion was dismissed with costs.

The appellant bank sought recovery of funds paid under a clean irrevocable letter of credit, alleging the respondent beneficiary’s call was fraudulent because the proceeds were applied to a different project under a cross-collateralization agreement unknown to the bank.

The court upheld the trial judge’s conclusion that there was no fraud, emphasizing the wording of the letter of credit, the legal advice obtained before the call, and the existence of formal grounds supporting the call in any event.

The related claims in mistake of fact and unjust enrichment failed because they were tied to the fraud allegation.

The respondent’s appeal from the trial costs disposition was also dismissed, including its request for solicitor-and-client costs and its effort to shift third party costs to the bank.