Shaun Nakatsuru

This motion, brought under Rule 21.01(1)(a) of the Rules of Civil Procedure, sought a determination of a question of law: whether a claim in a pleading (specifically, a Third Party Claim) constitutes proper notice under section 6(3) of the Arthur Wishart Act (Franchise Disclosure) 2000.

The franchisee (Shearer) and franchisor (The Works) argued that the pleading was not proper notice, while the franchisee's former lawyer (Msi), who was being sued for negligence for failing to provide proper notice, argued that it was.

The court found that a Rule 21 motion was appropriate and, following binding authority and legal principle, concluded that a Third Party Claim cannot constitute a proper notice of rescission under subsection 6(3) of the Wishart Act, as a pleading and a statutory notice serve distinct purposes and have different temporal and functional implications.

This case addresses a contractual dispute between a midwifery practice group (AMMA) and three former associate midwives regarding a clause requiring the withdrawal of hospital privileges upon termination of their agreements.

The court examined whether the clause applied to an expired contract, whether privileges were 'held through' the practice group, and if the clause constituted an unreasonable restraint of trade.

The court found the 'termination' clause ambiguous and, applying contra proferentem, ruled it did not apply to an expired contract.

However, it found that privileges were indeed 'held through' the practice group for the purpose of the clause.

The court also determined that the clause was not a restraint of trade under Ontario's formalistic approach, as it did not prohibit competition but merely required the withdrawal of privileges obtained through the association.

The application was dismissed against one respondent (whose contract expired) but allowed against the other two (whose contracts were terminated).

The applicants, Ronald and Maureen Kentner, moved for summary judgment to enforce a vendor take-back mortgage against the respondent, Marina Stefanovic, who had defaulted on payments.

Stefanovic opposed the motion, alleging that the Kentners' real estate agent had engaged in a scheme to artificially inflate the property's purchase price and that the Kentners were complicit.

Stefanovic also argued that partial summary judgment was inappropriate given her counterclaim against the Kentners and others.

The court granted partial summary judgment, finding the mortgage valid and enforceable, and that the Kentners did not participate in the alleged scheme.

The court determined that the mortgage claim was a discrete issue, suitable for bifurcation from the counterclaim, which would continue.

The plaintiffs moved for summary judgment seeking declarations of share ownership, directorship, invalidity of mortgages, and financial disclosure in a dispute over the sale of a hotel.

The defendants opposed, arguing a trial was necessary due to significant credibility issues and the inappropriateness of partial summary judgment, and also brought their own cross-motion for summary judgment.

The court dismissed both motions for summary judgment, finding genuine issues requiring a trial, particularly concerning witness credibility and the inability to readily bifurcate liability from remedy without risking inefficient duplication or inconsistent findings.

This case involves appeals from a Master's decision regarding procedural motions in a breach of contract action related to a tender process.

Metrolinx, Exclusive Advertising Inc., and non-party IMA Outdoor Inc. all appealed various aspects.

The court allowed Metrolinx's appeal, dismissing those of Exclusive and IMA.

Key issues included the amendment of pleadings to allege collusion, the relevance of post-Contract B events to discovery and production, and the examination of a non-party representative.

The court affirmed that collusion must be properly pleaded to open up Contract B events for discovery and upheld the Master's finding of a constructive refusal to obtain information as a basis for ordering a non-party examination.

The applicant municipality brought a motion for civil contempt against the respondent, a former mayor, for breaching a prior court order by disclosing confidential information during public town hall meetings.

The court found that the respondent had indeed breached the order by revealing personal information of employees from a confidential binder, and that the breach was intentional as per the legal test for civil contempt.

However, the court exercised its discretion to decline a formal finding of contempt, considering factors such as the respondent's honest belief (a mistake of law without contumacious intent), reliance on legal advice, the context of political discourse during an election campaign, the cessation of the conduct post-election, and the fundamental importance of freedom of expression.

The motion for contempt was dismissed, with each party bearing its own costs.

The plaintiff, Thanh Nguyen, brought an action against multiple defendants, including Toronto Dominion Bank (TDB), Ontario Lottery and Gaming Corporation (OLG), and Thien P. Dam (a lawyer), alleging negligence related to the cashing of a Canada Savings Bond, payment of a lottery prize, and transfer of property, respectively.

TDB, OLG, and Ms. Dam brought a motion for partial summary judgment to dismiss the claims against them.

The court granted the motion, finding that the claims were statute-barred by the limitation period and that no duty of care was owed by these defendants to the plaintiff.

The court also rejected the defendants' abuse of process argument but found no genuine issue requiring a trial for the negligence claims.

The plaintiff, Hilary Salmon, sued her former lawyer, Jonathan Keslassy, and his firm, Garfin Zeidenberg LLP, for solicitor's negligence.

Salmon alleged that Keslassy provided incorrect advice regarding the limitation period for a potential defamation lawsuit against the Toronto Star.

The court assessed the credibility of both Salmon and Keslassy concerning a pivotal phone call, finding Keslassy's testimony more credible and reliable.

The court concluded that Keslassy had provided the correct limitation period advice (six weeks for notice, three months to commence action).

Consequently, Salmon failed to prove solicitor's negligence.

The court also hypothetically considered the merits of the defamation claim, finding the article likely defamatory but that the defence of responsible communication on matters of public interest would have succeeded, leading to only nominal damages.

The action was dismissed.

The defendant/moving party, TDL Group Corp., brought a motion to strike the plaintiff's/responding party's Amended Statement of Claim.

The plaintiff, 6646107 Canada Inc., alleged breach of the original Franchise Agreement, breach of a subsequent oral "Renewal Agreement," and negligent/intentional misrepresentation regarding the non-renewal of its Tim Hortons franchise.

The court granted the motion in part, striking claims related to the breach of the original Franchise Agreement due to explicit non-renewal clauses and the absence of a free-standing duty of good faith.

However, the court dismissed the motion to strike claims concerning the oral Renewal Agreement and negligent/intentional misrepresentation, finding these issues involved mixed fact and law and were not plain and obvious to fail.

The defendants brought a joint motion to strike the plaintiff's Statement of Claim for failing to plead material facts to support the alleged causes of action, including breach of contract, negligence, public malfeasance, and intentional interference with economic relations.

The plaintiff, who was self-represented, also brought a cross-motion for an injunction.

The court found the Statement of Claim fundamentally deficient, lacking essential factual details.

Despite the deficiencies and prior warnings, the court struck the Statement of Claim but granted the plaintiff leave to amend within 30 days, acknowledging the plaintiff's self-represented status.

The plaintiff's motion for an injunction was dismissed as it failed to meet the requirements for injunctive relief.

Nominal costs were awarded against the plaintiff to two leading defendants.

This case involved an application and cross-application concerning a commercial lease dispute.

The tenant, 2324702 Ontario Inc. (Remix), sought a declaration that its lease was in full force and effect and had been validly renewed.

The landlord, 1305 Dundas W Inc., sought termination of the lease and possession.

The court granted Remix relief from forfeiture for a single instance of non-payment of rent, finding the breach not grave and the landlord suffered no damages.

However, the court found that Remix failed to properly exercise its option to renew the lease, as its communications were equivocal and conditional, not a clear and unequivocal notice.

The court also rejected arguments of waiver and estoppel regarding the renewal.

Additionally, the court applied estoppel against the landlord, preventing it from retroactively claiming increased realty taxes based on a strict lease provision, due to its prior conduct of adopting the previous landlord's calculation method.

Ultimately, the lease was declared expired, and Remix was ordered to vacate the premises within 60 days, while also being ordered to pay outstanding rent increases and a reasonably allocated share of realty taxes.

This endorsement addresses multiple motions in a complex civil litigation involving a main action, a counterclaim, and a second action.

The Plaintiffs in the main action moved to extend time for trial, enforce a settlement dismissing their claim against one defendant (Rita Rajkumar), and strike Rita Rajkumar's counterclaim.

Separately, a plaintiff in the second action (15263851 Ontario Inc.) moved to join its action to the main action.

The court granted the extension of time and enforced the settlement.

However, the motion to strike the counterclaim was denied, as a counterclaim is a separate cause of action not dependent on the main claim's disposition.

The court also granted the motion to consolidate the second action with the main action, including the counterclaim, finding the issues interwoven and consolidation necessary to avoid inconsistent verdicts and multiplicity of proceedings.

Metropolitan Toronto Condominium Corporation No 1371 (MTCC 1371) brought a summary judgment motion to dismiss Jermark Plumbing & Mechanical Services Ltd.'s (Jermark) claim for breach of contract and duties of good faith.

Jermark alleged it was the winning bidder for a piping replacement project and that MTCC 1371 breached its obligations by awarding the contract to another company after unit owner objections and a court order.

The court dismissed the summary judgment motion, finding genuine issues requiring a trial, particularly concerning contract formation, the exact terms of any agreement, and good faith performance, which depend heavily on witness credibility and the factual narrative.

The defendants, a builder (Park Avenue) and a developer (739), moved for summary judgment to dismiss the plaintiffs' action for declarations, specific performance, and damages related to the termination of pre-construction home agreements.

The plaintiffs, five buyers, alleged breach of good faith, honest performance, and negligence.

The court found that Park Avenue made reasonable efforts and acted in good faith to satisfy an early termination condition (obtaining a Cost Sharing Agreement, CSA) despite delays caused by a third-party developer.

The court also determined that 739, the developer, did not owe a duty of care to the purchasers due to a lack of proximity.

Even if a breach of contract by Park Avenue had occurred, the court concluded that the agreements would have been lawfully terminated anyway, resulting in no damages.

Summary judgment was granted in favour of the defendants, dismissing the plaintiffs' action.

A commercial real estate deal involving three properties failed to close.

The plaintiff, NJS Capital Management Inc., brought a summary judgment motion for breach of contract, while the defendants counterclaimed, alleging fraudulent misrepresentation, seeking rectification, or rescission based on unconscionability, arguing the deals were cross-conditional and a package.

The court granted summary judgment in favor of the plaintiff, finding the defendants breached the contracts and dismissing the counterclaims, concluding there was no oral agreement for cross-conditionality or misrepresentation, and the contracts were not unconscionable.

Mr. Ivars Mikelsteins, a 57-year-old employee with 31 years of service, was terminated without cause from Morrison Hershfield Ltd. He brought a summary judgment motion for wrongful dismissal damages, including reasonable notice, benefits, share valuation increases, share bonuses, and a gross-up on share value.

The court determined a reasonable notice period of 26 months, awarded damages for base salary, bonus, and RRSP contributions, and 10% of base salary for lost benefits for the remaining notice period.

The court also found Mikelsteins entitled to damages for the increase in share value, share bonuses, and a gross-up, rejecting the employer's argument that the Shareholders' Agreement ousted common law entitlements.

The court adopted a partial summary judgment approach for mitigation, requiring monthly payments and allowing the employer to challenge mitigation efforts later.

The plaintiff sued the Toronto Transit Commission (TTC) for negligence after falling on a bus with a wet floor.

The court examined the bus driver's standard of care, considering the TTC's operator manual and the prevailing weather conditions.

The court found that the driver operated the bus reasonably and prudently, and the plaintiff's fall was not reasonably foreseeable.

Consequently, the action for negligence was dismissed.

The court also made hypothetical findings on causation and contributory negligence, determining that if negligence had been found, the plaintiff would have been 75% contributorily negligent.

The plaintiff, Chantale Abbott-Keith, appealed a Certificate of Assessment of Costs issued by an Assessment Officer, which significantly reduced her claimed party-and-party costs from two settled motor vehicle accident actions and awarded costs of the assessment against her.

The appeal raised grounds including the Assessment Officer's failure to conduct a line-by-line analysis, breach of natural justice and procedural fairness by not properly considering the plaintiff's objections under Rule 58.10, and errors in applying proportionality and reducing disbursements.

The court found that the Assessment Officer erred in interpreting Rule 58.10(1) regarding the timing of objections and fundamentally misconstrued her role in the reconsideration process, thereby denying the plaintiff a fair hearing.

The appeal was granted, the Certificate of Assessment of Costs was quashed, and the matter was remitted back to the same Assessment Officer for a proper hearing of objections.

The defendants brought a summary judgment motion to dismiss claims of unjust enrichment against the Da Costas and solicitor negligence against Allen P. Welman, and to argue that certain monetary claims were statute-barred.

The plaintiff, the Estate of Guido Barberio, alleged that the Da Costas took advantage of the deceased in a below-market value property transfer, aided by Mr. Welman's negligence.

The court dismissed the summary judgment motion, finding genuine issues requiring a trial, particularly concerning the credibility of witnesses, the nature of the relationship between the deceased and the Da Costas, the circumstances surrounding the property transfer, and the discoverability of the negligence claim against the solicitor.

The court emphasized that expanded fact-finding powers were inappropriate given the complex factual matrix and intertwined credibility issues, and that a full trial was necessary for a just resolution.

The defendants brought a motion under Rule 21.01(1) to strike portions of the plaintiff's statement of claim, specifically targeting claims against defendant Tyulenyev, the claim for passing off, and the claim for unlawful interference with economic relations.

The court applied the "plain and obvious" test, finding that sufficient material facts were pleaded to support the claims against Tyulenyev, including personal liability for copyright infringement despite not being a directing mind of the corporation.

Regarding the passing off claim, the court acknowledged its novelty in recognizing the "style and content" of reports as a "get-up" but held that novelty alone is not a basis to strike a claim if material facts are pleaded and there is a reasonable prospect of success.

For the unlawful interference claim, the court found that an intention to injure could be inferred from the pleaded facts and that the "public" relying on the plaintiff's reports was sufficiently identified as a third party.

Consequently, the motion to strike was dismissed in its entirety.