Sean N. Zeitz

This is a costs ruling following a complex fourteen-day combined family and civil trial.

The trial involved equalization payment disputes between spouses exceeding $10.5 million, unequal division claims, post-valuation date adjustments, fraud and oppression allegations, and a civil action for fraudulent conveyancing.

The husband was ordered to pay the wife an equalization payment of $1,054,267 and the wife was ordered to pay the husband $1,000,000 for oppression and punitive damages.

The court addressed costs claims from the wife and a third-party defendant, finding the civil action unnecessary and awarding limited costs to the wife for a specific pre-trial motion, while awarding substantial costs to the third-party defendant who successfully defended against fraud allegations.

The Court of Appeal for Ontario dismissed Lynne Catherine Foulidis’s motion for a panel review and to set aside the Deputy Registrar’s order dismissing her appeal for delay.

The court found that the motion judge correctly concluded the appeal lacked merit and that the criteria for an extension of time to perfect the appeal were not met.

The court reviewed the trial judge’s findings regarding the retainer agreement and legal fees, and found no palpable and overriding error.

Costs were awarded to the respondent.

The Court of Appeal for Ontario dismissed the appeal in this commercial landlord-tenant dispute.

The trial judge found that the tenant, 2682543 Ontario Inc., repudiated the lease for restaurant premises and that the landlord, 720443 Ontario Inc., properly accepted the repudiation and terminated the lease.

The tenant and its guarantor, Shahab Rashid Savojbolaghi, were held liable for damages.

The Court rejected the tenant’s arguments regarding joint occupancy and the timing of possession, upholding the trial judge’s interpretation of the lease and the finding of repudiation.

The moving party sought an extension of time to perfect her appeal from a trial judgment awarding her former legal counsel approximately $481,000 in unpaid legal fees.

The responding party opposed the motion.

The Court of Appeal dismissed the motion, finding that while the moving party met the criteria for continuing intention to appeal, explanation for delay, and lack of prejudice, the putative appeal had virtually no chance of success as it primarily attacked the trial judge's factual findings without demonstrating palpable and overriding error.

The plaintiff landlord sued the defendant tenant and its guarantor for breach of a commercial lease.

The tenant failed to take possession and begin fixturing the premises, arguing the landlord had not completed its work to satisfaction.

The court interpreted the lease, finding that the tenant was obliged to take possession when the landlord's work was "sufficiently complete to permit fixturing," not fully complete.

The tenant's failure to take possession constituted repudiation of the lease.

The court awarded the landlord damages, holding both the tenant and the guarantor liable.

The applicant sought a declaration that debts arising from a 2016 judgment survived the respondents' discharge from bankruptcy pursuant to sections 178(1)(d) and (e) of the Bankruptcy and Insolvency Act, alleging fraud or fraudulent misrepresentation.

The court dismissed the application, finding no evidence in the original pleadings or judgment to support claims of fraud, embezzlement, misappropriation, defalcation in a fiduciary capacity, or obtaining property by false pretenses or fraudulent misrepresentation.

The court determined the debt was a breach of contract, not fraud, and that the applicant was attempting to recharacterize the debt post-bankruptcy.

The plaintiff, Jodi L. Feldman Professional Corporation, sought costs following a successful trial against the defendant, Lynne Catherine Foulidis, for legal services rendered.

The trial assessed the value of services at $480,919.93.

The plaintiff sought $276,631.63 in costs, applying partial indemnity to an Offer to Settle date and substantial indemnity thereafter.

The defendant objected on grounds of reasonableness, proportionality, insufficient docket details, and an alleged agreement for summary trial costs limits.

The court largely agreed with the plaintiff's entitlement to costs but made reductions for excessive claims related to statement of claim drafting, a charging order motion, and mediation, ultimately fixing costs at $240,118.50 all-inclusive.

The plaintiff, a private mortgage lender, brought a summary judgment motion against its title insurer for an additional $72,000 in losses arising from title fraud.

The dispute centered on whether the $72,000, representing prepaid interest withheld from the loan advance, constituted an "actual monetary loss" covered by the policy.

The defendant insurer argued it was not a loss as the funds were never advanced to the borrower.

The court, applying principles of insurance contract interpretation (broad coverage grant, narrow exclusions/limitations), found that the withholding of interest was an accounting set-off and the plaintiff's actual loss was the full principal amount less recoveries.

The court concluded that the $72,000 interest was part of the insured loss.

Summary judgment was granted to the plaintiff for $70,882.21, plus prejudgment interest and costs.

The applicant mother brought a summary judgment motion seeking declarations against the respondent father and the Director of Land Titles.

The mother sought declarations that she and the father were spouses, that the Newmarket property was a matrimonial home, and that she was entitled to compensation from the Land Titles Assurance Fund due to a fraudulent mortgage taken by the father.

The court dismissed the claims for declaratory relief against the Director, finding it lacked jurisdiction to determine compensation from the Fund at first instance, as the statutory scheme designates the Director for such determinations, subject to appeal.

The court also found that the mother had not met the summary judgment test for the relationship issues due to conflicting evidence regarding a foreign divorce and separation agreement.

The issue regarding setting aside the TELB mortgage settled.

The Heidari Creditors, as assignees of the trustee in bankruptcy, sought an order compelling a representative of Sherwood Custom Homes Inc. to be examined under subsection 163(1) of the Bankruptcy and Insolvency Act.

Their theory was that the bankrupt's former spouse's salary at Sherwood might represent funds earned by the bankrupt.

The court dismissed the motion, finding that the creditors failed to establish that Sherwood reasonably had knowledge of the bankrupt's affairs or property, and that the evidence did not reasonably support the theory that the spouse's income represented the bankrupt's earnings.

The plaintiff, Jodi L. Feldman Professional Corporation, a matrimonial lawyer, sued her former client, Lynne Catherine Foulidis, for unpaid legal fees totaling $664,323.38 incurred during a divorce proceeding.

The dispute centered on the existence of a written retainer, the quantum of fees, and alleged breaches of professional conduct by the plaintiff, including communication deficiencies and potential conflicts of interest.

The court found a valid written retainer existed and that the plaintiff's efforts were largely necessary due to the ex-spouse's non-disclosure.

While rejecting claims of excessive litigation or actual conflict of interest, the court found the plaintiff failed to meet the standard of care in communication and record-keeping regarding litigation strategy and risks.

The court fixed the amount owed for fees at $425,000 plus HST and disbursements, a reduction from the amount claimed, but significantly more than the defendant's proposed amount.

This is a ruling on a motion to disqualify a witness, Gabrielle St. George, in ongoing matrimonial and civil litigation.

Vito Ierullo sought to call Ms. St. George, the estranged sister of Rae Marie Ierullo (referred to as Ms. Adragone), to provide evidence concerning a loan assignment, the transfer of a family home, and allegations of forgery and fraudulent documents.

Rae Marie Ierullo objected, arguing the proposed evidence was largely hearsay, lacked direct knowledge, and was motivated by ill-will.

The court found the evidence to be speculative, based on animus, and largely hearsay, concluding that its admission would unnecessarily expand the scope of the trial into collateral family and estate issues.

The motion to permit Ms. St. George to testify was dismissed.

The court-appointed receiver brought a motion to approve the sale of a jointly owned property and for ancillary relief, including approval of fees and an interim distribution of proceeds.

The respondent opposed the sale, challenging the appraisals, the rejection of his own bid, and the receiver's fees.

Applying the Soundair test, the court found that the receiver made sufficient efforts to obtain the best price, considered the interests of all parties, and conducted a fair process with integrity.

The court approved the sale, the receiver's fees, and an interim distribution of the proceeds to the applicant to satisfy outstanding obligations under a prior divorce agreement.

This mid-trial ruling addresses the qualification of an expert witness, D.J. Myles Martin, proposed by the applicant (Rae Marie Ierullo) in a combined family and civil trial concerning business valuations.

The respondent (Vito Ierullo) challenged the expert's qualifications.

The court applied the Mohan and White Burgess tests for expert admissibility, considering factors such as formal education, professional qualifications, experience, and independence.

The court declined to qualify the expert, citing his lack of formal CBV accreditation, limited litigation support experience, and an undisclosed social relationship with the applicant, which raised concerns about his objectivity and non-partisanship.

The plaintiffs, Robert Salna and North Lake Estates Inc., brought a partial summary judgment motion seeking a declaration that a partnership existed with the defendants, 741980 Ontario Limited and Enzo Risi, for building houses.

The defendants brought a cross-motion to dismiss the claim as statute-barred.

The court found that a partnership existed based on a written agreement, admissions in pleadings and affidavits, and the parties' conduct.

The court also determined that the plaintiffs' claim was not statute-barred, applying sections 5(1)(a)(iv) and 11 of the Limitations Act, 2002, due to ongoing efforts to resolve the accounting dispute with the assistance of a third-party accountant.

The remaining issues regarding the partnership terms, misappropriations, and final accounting were reserved for further summary judgment proceedings.

The appellants sought to overturn a summary judgment granting the respondent recovery on a $460,000 loan secured by a promissory note.

They argued the motion judge erred in applying the summary judgment test from Hryniak v. Mauldin, failing to apply the Statute of Frauds, and enforcing an oppressive interest rate.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the motion judge's conclusion that there was no genuine issue requiring a trial.

The court affirmed that the promissory note was valid and enforceable, the Statute of Frauds did not apply due to existing written documentation and the parties' conduct, and the agreed-upon interest rate was valid.

This endorsement addresses a partial summary judgment motion where the court, following the Court of Appeal's decision in Co-Operators General Insurance et al., requested submissions on the appropriateness of partial summary judgment.

Due to conflicting affidavits regarding an alleged agreement to engage an accountant for partnership profit accounting and a promise to pay, and issues of access to partnership documents and potential estoppel related to the limitation period, the court found significant credibility issues.

Consequently, a mini-trial was ordered to resolve these factual disputes, including the applicability of section 11 of the Limitations Act.

Lynne Foulidis appealed a Superior Court order granting a charging order against her Toronto residence to Jodi L. Feldman Professional Corporation for $664,323.38 in legal fees.

The charging order was granted to secure outstanding legal fees from family litigation.

Lynne argued the property was no longer in existence for the purpose of the charging order due to a prior transfer to George Foulidis, that the lawyer's contribution was not substantial, and that there was no risk of non-payment.

Jodi L. Feldman Professional Corporation cross-appealed on costs.

The Court of Appeal dismissed Lynne's appeal, upholding the charging order, finding that the property was in existence (subject to a triable issue of fraudulent conveyance), the lawyer's contribution was instrumental, and there was a clear refusal to pay fees.

The cross-appeal on costs was also dismissed, but costs of the appeal were awarded to Jodi L. Feldman Professional Corporation.

The plaintiff, Business Development Bank of Canada, moved for summary judgment to enforce a personal guarantee against the defendant Kelly Ann Bovair.

Bovair resisted, arguing the guarantee failed for want of consideration or was unconscionable due to alleged misrepresentations by her spouse and co-defendant, Justin Carter, and the bank's failure to ensure independent legal advice.

The court granted summary judgment to the plaintiff, finding the guarantee valid and enforceable, as consideration flowed to the principal debtor, and the bank had no obligation to ensure independent legal advice given the lack of evidence it knew or should have known of fraud, misrepresentation, or undue influence.

The appellant, Bijan Naghshbandi, appealed judgments from two actions where he was ordered to repay significant debts to Shahram Heidari and Tarra Engineering Inc. The appeal raised five grounds: that the trial judge introduced a new theory of liability (joint investment), failed to provide adequate reasons for liability, did not apply a claimed credit, misstated the test for an oppression action, and erred in relying on unreliable witness testimony regarding a share transfer.

The Court of Appeal dismissed all grounds, upholding the trial judge's findings, particularly on credibility, and confirming the debts owed.