Simon Bieber

In an appeal arising from a failed residential real estate transaction, the appellants challenged the dismissal of their third-party negligence claim against their real estate agent and brokerage.

The Court of Appeal held that the trial judge erred by confining the analysis to whether the agent had actively misled the appellants, without determining whether the agent negligently failed to advise them of the consequences of breaching the agreement and failed to address misleading communications with the vendors.

The court also held it was erroneous to rely principally on signatures and initials on the agreement to infer that the agreement had been adequately explained, without resolving whether the appellants reasonably misunderstood its effect.

Because the appeal record required factual and credibility findings that an appellate court should not make, a new trial before a different judge was ordered.

The costs order below was set aside, and the appellants received $20,000 in appeal costs.

The applicant, a private party, sought standing to bring an application under s. 127(1) of the Securities Act to cease trade the shares of the respondent corporation.

The applicant alleged the respondent's non-offering prospectus contained a misrepresentation regarding the completion of an amalgamation with its Peruvian subsidiary, which the applicant argued could prejudice its contingent creditor claim in Peru.

The Capital Markets Tribunal dismissed the motion for standing, finding that the applicant failed to raise its concerns with Commission staff first, the allegations did not raise a novel securities law issue, the Tribunal was not the appropriate forum to adjudicate Peruvian corporate law, and the applicant was not directly affected by the alleged conduct.

The applicant sought a cease trade order against the respondent, alleging its prospectus contained a material misrepresentation regarding an amalgamation in Peru.

The respondent requested that the proceeding be bifurcated to determine the applicant's standing before hearing the merits.

The Tribunal granted the request to bifurcate, finding no urgency, meaningfully different issues between the standing and merits stages, and potential efficiencies in separating the hearings.

A schedule for the bifurcated proceeding was ordered.

The defendants sought costs after successfully moving to strike portions of the plaintiffs' statement of claim.

The court noted that the motion was essentially a demand for particulars and that the plaintiffs' pleadings were defective.

However, the court criticized the high costs incurred by both sides for a motion that could have been resolved through cooperation.

The court ordered the plaintiffs to pay the defendants' costs in the cause on a partial indemnity basis, fixed at $20,000.

The Ontario Securities Commission appealed an order appointing a receiver over Cacoeli Asset Management and related entities pursuant to section 129(1) of the Securities Act.

The appellants argued that the appointment of a receiver requires a strong prima facie case of breaches of the Act.

The Court of Appeal upheld the lower court's decision, holding that the correct evidentiary standard is a serious concern that there have been possible breaches of the Act.

The court found that the OSC had met this standard based on evidence that funds raised from investors for specific projects were diverted to other purposes without investor disclosure or consent.

The applicant sought an order disqualifying and removing the arbitrator in a mediation-arbitration proceeding between a condominium corporation and a hotel corporation regarding disputes over cost-sharing, maintenance, and utilities.

The arbitrator disclosed that a proposed expert witness for the applicant had recently referred an unrelated litigation matter to the arbitrator's law firm, with the arbitrator tasked with carriage of that matter.

The arbitrator initially identified a clear appearance of conflict and proposed three options, including his resignation or waiver by both parties.

However, after the respondent objected to the arbitrator's withdrawal, the arbitrator reversed his position and refused to resign.

The court found that while a single business referral might not justify disqualification, the subsequent events—including the arbitrator's initial determination of a clear appearance of conflict, his reversal of position, and the manner in which he attempted to manage the conflict—gave rise to a reasonable apprehension of bias.

The application was granted and the arbitrator was disqualified.

This is a costs endorsement following a judgment in which the court found Yahya Dikeni Hashiru liable for unjust enrichment in the amount of $713,089 and Spotless Consultancy Inc. liable for fraud in the amount of $2,726,050 plus punitive damages of $250,000.

The plaintiffs sought substantial indemnity costs of $100,000 against both defendants.

The court awarded substantial indemnity costs of $100,000 against Spotless based on the fraud finding, but awarded only $60,000 against Hashiru on a lesser scale given that the successful claim was for unjust enrichment rather than fraud.

The court also ordered a post-judgment Mareva injunction in aid of execution for 9 months and granted tracing orders regarding two Ghanaian entities.

Following a failed residential real estate transaction in which the purchasers did not pay the required deposit, the defendants pursued a third party claim against their real estate agent and brokerage for indemnity.

The central allegation was that the agent had advised the purchasers that the agreement was effectively conditional on delivery of the deposit and that non-payment would permit them to walk away without liability.

The court rejected that factual theory, finding the signed agreement and surrounding communications supported the conclusion that the purchasers had been committing to a firm deal and were later attempting to avoid completion after family advice.

The court accepted the general statement of the real estate agent’s duty of care but held no breach was established on the evidence.

The third party claim was dismissed.

The applicant, the Ontario Securities Commission, sought an order under section 129 of the Securities Act to appoint a receiver and manager over all assets and properties of the respondents, a group of interconnected real estate investment entities.

The Commission alleged that the respondents diverted investor equity from specific limited partnership projects to unrelated properties, contrary to the limited partnership agreements and marketing materials.

The court rejected the respondents' argument that a strong prima facie case was required, holding that the Commission only needed to show serious concerns of a breach.

Although the court ruled that investor interview transcripts were hearsay and inadmissible for the truth of their contents, it found sufficient evidence of improper fund diversion to justify the receivership.

The court appointed the receiver over all properties, declining to exempt specific properties held by secured creditors, to ensure coordinated oversight.

This decision concerns the sanction for contempt and the allocation of costs following findings that the defendants failed to comply with a court order (the "Turnover Order") in a complex commercial dispute.

The court awards full indemnity costs to the plaintiffs for the contempt motion, reduced by 25% due to Charter breaches, and substantial indemnity costs to the defendants for a successful Charter-based stay motion.

The court also addresses the principles of set-off and mutuality of debt in the context of competing costs awards.

This decision concerns two related shareholder applications under section 241 of the Canada Business Corporations Act involving SpassMed Inc. and its affiliates.

The court reviews the procedural history, including consolidation of the applications, amendments to the relief sought, and the appointment of an interim monitor.

Due to significant disputes of fact and credibility, the court orders that the consolidated application be converted to an action to allow for a full trial process.

The appellants appealed a trial judgment that granted declaratory relief to the respondents and dismissed the appellants' counterclaim for fees.

The appeal focused on whether management agreements were unauthorized and if the respondents were estopped from arguing their invalidity.

The Court of Appeal found no palpable and overriding error in the trial judge's interpretation of the agreements or her finding on estoppel.

The appeal was dismissed, and leave to appeal the costs order was also dismissed.

The moving parties brought a motion for leave to appeal the decision of Perell J. dated April 29, 2024.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding parties.

This endorsement addresses a contempt motion brought by the plaintiffs against the defendants for non-compliance with a prior trial decision, and a cross-motion by the defendants to stay the contempt motion due to alleged Charter breaches by the plaintiffs.

The court found the defendants in contempt for several failures to comply with the original order, including withholding records and refusing to execute necessary assignments.

However, the court also found that the plaintiffs committed Charter breaches (failure of timely disclosure and case splitting) in their prosecution of the contempt motion, which curtailed the evidence that could be relied upon.

The stay motion was dismissed, but the scope of contempt findings was limited due to the excluded evidence.

The court ordered the defendants to comply with outstanding obligations within 30 days.

This endorsement addresses the costs of an eight-day trial where the plaintiffs were entirely successful in their claims and in dismissing the defendants' counterclaim.

The plaintiffs sought substantial indemnity costs, arguing the defendants' conduct, including unsubstantiated fraud allegations and disclosure failures, warranted an elevated scale.

The defendants opposed the quantum and scale, and the plaintiffs also sought costs against the defendants' principal, Mr. Tajbakhsh, and an unidentified third-party funder.

The court awarded the plaintiffs $1 million in substantial indemnity costs, finding the defendants' conduct, while not amounting to fraud on the court, justified the elevated scale.

However, the court declined to award costs against Mr. Tajbakhsh personally or the third-party funder, as the high threshold for non-party costs (abuse of process or fraud) was not met.

The court also explicitly prohibited the defendants from using Limited Partnership funds to satisfy the costs award.

The defendants by counterclaim (West Face Capital Inc., Gregory Boland, and Bruce Langstaff) moved for a Mareva injunction to prevent the plaintiffs by counterclaim (The Catalyst Capital Group Inc., Callidus Capital Corporation, and Newton Glassman) from removing assets from Ontario.

The moving parties alleged that Mr. Glassman was relocating to the Bahamas and dissipating assets to avoid potential judgments arising from a massive corporate espionage and defamation campaign.

The court found that while the moving parties established a strong prima facie case of deceitful and tortious conduct by Mr. Glassman, they failed to prove a real risk that assets were being removed with the specific intent to defeat creditors.

The court also found the moving parties delayed in bringing the motion and failed to establish irreparable harm.

The motions for a Mareva injunction were dismissed.

The defendants, including five John Doe police officers, brought a motion seeking a publication ban, sealing order, and pseudonym order to protect their identities in a civil action concerning the shooting death of Ejaz Choudry.

The court dismissed the motion, finding that the defendants failed to meet the high evidentiary burden required to justify an exception to the open court principle.

The court emphasized the public interest in transparency and police accountability, particularly in cases involving state action and racialized communities, and found the evidence of risk to the officers' safety to be speculative.

This appeal concerns a failed real estate transaction where both parties mistakenly believed the property was subject to a prescriptive easement.

The purchaser, Roalno Inc., refused to close without a price abatement or extinguishment of the supposed easement.

The vendors refused these terms.

Roalno sued for specific performance with an abatement.

The trial judge dismissed the action, finding Roalno breached the agreement by refusing to close.

The Court of Appeal upheld this decision, concluding that Roalno had anticipatorily breached the contract by demanding new terms based on a legally erroneous belief, and that the vendors had accepted this repudiation, thereby ending the contract.

The court also clarified that statutory rights under the Road Access Act do not constitute an easement or right-of-way under the agreement's warranties.

The plaintiff and a defendant mortgagee brought a motion for summary judgment and distribution of sale proceeds paid into court following the sale of two properties by power of sale.

The court found that the defendant owners had engaged in fraudulent conduct, including registering sham mortgages and fraudulently discharging a valid mortgage, to defeat creditors.

The court granted summary judgment, reinstated the fraudulently discharged mortgage, and ordered the distribution of the sale proceeds to the valid mortgagees, including their legal costs on a complete indemnity basis.

The plaintiffs, limited partners in three real estate development limited partnerships, sought declarations validating their special resolutions to remove and replace the original general partners.

The dispute arose after the original general partners issued capital calls to pay management fees to an affiliated company, which the plaintiffs argued were unauthorized.

The court found the capital calls were invalid as the management agreements were not approved by special resolution and the general partners failed to seek external financing first.

The court upheld the plaintiffs' special resolutions removing the original general partners due to multiple unremedied defaults, including failure to provide access to financial records, co-mingling of funds, and unauthorized related-party transactions.

The defendants' counterclaims were dismissed.