Simon Joseph Adler

Following a trial where the plaintiff successfully set aside a fraudulent conveyance based on a forged signature, the plaintiff sought costs.

The court awarded substantial indemnity costs against the defendant who committed the forgery, finding that forging a signature to transfer a home constitutes reprehensible conduct.

Partial indemnity costs were awarded against the other unsuccessful defendants who were not implicated in the forgery.

The plaintiff, Ronald Culbert, sought rectification of title to his property, alleging that his signature on an Acknowledgment and Direction for transfer of title to his mother, Marjorie Culbert, was forged by his brother, Timothy Culbert.

The property subsequently passed to Jessica Culbert (Timothy's daughter) upon Marjorie's death.

The court found that Timothy Culbert fabricated his evidence regarding the signing of the document and concluded that he forged Ronald's signature.

Applying sections 155 and 159 of the Land Titles Act, the court declared the transfer fraudulent and void, ordering rectification of the register to restore Ronald as the beneficial owner.

The court also determined that the defendants could retain income generated from the property during their possession, offsetting their responsibility for expenses, based on proportionality.

The appellant appealed a decision of the Ontario Municipal Board dismissing a request for an Official Plan amendment to sever a two-acre portion of its golf course property containing a house.

The house was originally built as an accessory use to the golf course.

The Divisional Court held that the OMB's decision was reasonable, agreeing that it would be contrary to planning policy to allow a party to build a home as an accessory use and later sever it for residential use when it is no longer needed for the golf course.

The Waterloo Region District School Board appealed an Ontario Municipal Board decision awarding interest to Erbsville Road Development Inc. on expropriated land from the date of draft subdivision approval, rather than the later date of actual expropriation.

The Divisional Court dismissed the appeal, holding that under s. 33(1) of the Expropriations Act, interest can accrue from a date preceding expropriation when the owner ceases to make productive use of the land due to the impending expropriation.

The court found the board member's determination that productive use ceased upon draft approval was reasonable.

The defendants moved for a stay of a civil action on the basis that the dispute fell within an arbitration clause contained in a unanimous shareholders agreement.

The plaintiffs alleged breaches of confidentiality, non‑competition, fiduciary duties, and economic relations arising after one founder left the company and formed a competing business.

The court applied s. 7 of the Arbitration Act, 1991 and the competence‑competence principle, concluding that it was at least arguable the dispute fell within the arbitration agreement.

The presence of a corporate defendant that was not a signatory and the plaintiffs’ request for injunctive relief did not prevent referral to arbitration.

The court stayed the action and directed that the arbitrator determine jurisdiction and the merits of the dispute.

Following a civil trial involving a dispute between the plaintiff and one defendant, the successful defendant sought recovery of legal costs totaling $62,762.36 based on partial and substantial indemnity, relying in part on offers to settle delivered shortly before trial.

The plaintiff conceded entitlement to costs but argued the amount claimed was excessive and that certain docketed time, including attendance of a student at trial, was unnecessary.

The court found the case relatively simple and rejected the request for substantial indemnity costs based on late offers to settle.

However, the court held the plaintiff’s conduct at trial warranted more than partial indemnity costs.

A lump sum costs award of $47,000 inclusive was fixed and ordered payable within 30 days.

The appellants appealed an order discharging an $800,000 mortgage registered on a property.

In a prior proceeding, the court interpreted an agreement allowing the respondent to decline paying the mortgage, which gave the appellants an option to repurchase the property.

The respondent declined to pay, and the appellants did not repurchase.

The motion judge granted the discharge, finding it logically flowed from the prior decision.

The Court of Appeal agreed, noting the agreement provided the mortgage was deemed satisfied if the transaction failed to close without the respondent's fault.

The appeal was dismissed.

The appellant appealed a motion judge's decision striking his statement of claim and dismissing his action regarding two properties.

For the Fergus property, the Court of Appeal allowed the appeal, finding the motion judge proceeded on an incomplete understanding of the facts regarding waiver of conditions and extension of the closing date, and that a ten-year limitation period might apply.

For the Erin property, the Court dismissed the appeal, agreeing with the motion judge that the claims were barred by res judicata as they had been or should have been resolved in prior proceedings.

The plaintiff sued a lawyer, alleging the lawyer acted for him on a mortgage transaction and breached trust obligations by disbursing $70,000 of the proceeds to a third party instead of the plaintiff.

The court dismissed the claim against the lawyer, finding that the plaintiff was actually represented by his spouse, who was also a lawyer, and that the defendant lawyer had followed instructions to disburse the funds.

The court made strong adverse credibility findings against the plaintiff and his spouse.

Judgment was granted against the third party who received the funds.

Following reasons determining a contract interpretation dispute regarding the price payable to repurchase property, the court addressed costs.

The successful party sought partial indemnity costs of approximately $32,000, while one opposing party proposed a $10,000 award and another argued that no costs should be ordered.

Applying the principles in Rule 57.01 of the Rules of Civil Procedure and the jurisprudence emphasizing fairness and reasonableness, the court found the requested costs excessive given the number of lawyers involved and the volume of hours billed.

The court reduced the award and fixed costs at $15,000 payable by one applicant, noting that the other applicant had minimal involvement in the litigation.

Following dismissal of a motion for an interim injunction, the successful defendants sought substantial indemnity costs of $26,270.93 for the interlocutory proceeding.

The court acknowledged the general presumption that the successful party is entitled to costs and that interlocutory costs are ordinarily payable forthwith.

However, given that the underlying dispute raised a serious issue to be tried concerning alleged use of a protected confectionery recipe and related marketing practices, the court concluded that the justice of the case warranted a different approach.

Costs of the motion were therefore reserved to the trial judge, who would be better positioned to assess entitlement in the context of the full record.

The applicants sought a declaration that they could exercise a contractual option to repurchase real property for $400,000 after crediting an $800,000 vendor take‑back mortgage against a stated repurchase price of $1,200,000.

The respondent argued the mortgage clause required payment of the full $1,200,000 to reacquire the property, with the mortgage deemed satisfied upon payment.

The court applied principles of contractual interpretation and held the clause was unambiguous: exercising the option required payment of $1,200,000 without deduction for the outstanding mortgage.

Contextual evidence and surrounding circumstances did not alter the plain wording, and the contra proferentem rule was inapplicable because both parties participated in drafting the agreement.

The application was dismissed and the respondent’s cross‑application granted declaring that the option could only be exercised upon payment of $1,200,000 subject to normal real estate adjustments.

The plaintiff sought an interlocutory injunction restraining the defendants from using the term “mint smoothie” to describe a chocolate confection, alleging trademark infringement and passing off under the Trademarks Act.

The court accepted that there was a serious issue to be tried given the parties’ relationship, the defendants’ marketing references to family recipes, and the existence of a registered trademark.

However, the plaintiff failed to demonstrate irreparable harm as required by the RJR‑MacDonald test.

Evidence of marketplace confusion was largely hearsay and insufficient, and any potential damages could be quantified.

The balance of convenience also favoured the defendants because the disputed product represented a significant portion of their sales.

The motion for an interlocutory injunction was dismissed.

Following a successful trial resulting in damages of $400,000 for the applicants, the court determined the appropriate costs award.

The applicants sought substantial indemnity costs exceeding $213,000 based on early settlement offers.

The respondents accepted that costs were payable but argued for a lower partial indemnity award.

The court held that the settlement offers did not justify substantial indemnity costs and that partial indemnity costs were appropriate after considering Rule 50.10 factors including trial length, complexity, and importance of the issues.

Costs were fixed at $150,000 inclusive of disbursements and taxes.

Multiple defendants brought motions seeking security for costs against a plaintiff who was ordinarily resident outside Ontario in two related civil actions.

The plaintiff argued impecuniosity and contended that an order for security would effectively drive him from the litigation.

The court held that the plaintiff failed to meet the high evidentiary threshold required to establish impecuniosity because he provided outdated financial disclosure and did not produce complete, current documentation regarding income, assets, liabilities, and borrowing capacity.

Finding the requested security amounts reasonable given the anticipated complexity and duration of the litigation, the court ordered the plaintiff to post security for costs in both actions, failing which the proceedings would be stayed.

The appellant appealed an order dismissing his application for declaratory relief as statute-barred.

The appellant argued that under s. 16(1)(a) of the Limitations Act, there is no limitation period for his application.

The Court of Appeal dismissed the appeal, finding that the application implicitly sought consequential relief, taking it outside the scope of s. 16(1)(a).

The Court noted that any viable claim the appellant might have would be through an application for an order to pass accounts.

The plaintiff's personal injury action was dismissed for delay by the registrar after a status notice was not served on the plaintiff or his counsel due to an administrative error.

The plaintiff's counsel discovered the dismissal order shortly after but waited two years to bring a motion to set it aside.

The motion judge dismissed the motion due to the delay.

On appeal, the Court of Appeal held that while the failure to serve the status notice was an irregularity rather than a jurisdictional error, the motion judge erred by applying a rigid test instead of a contextual approach.

Balancing all factors, including the lack of prejudice to the defendants, the Court set aside the dismissal order and reinstated the action.

The appellants purchased a golf course from a court-appointed receiver pursuant to a Sale Approval and Vesting Order.

After the order but before closing, the appellants learned of a pending municipal tax reassessment that would substantially increase realty taxes for the period prior to closing.

The receiver refused to readjust the purchase price.

The motion judge held that the Vesting Order did not protect the appellants from the reassessment and, alternatively, that the order should be rectified to reflect the parties' contractual intention.

The Court of Appeal allowed the appeal, finding that rectification was unavailable because the parties lacked a common intention, and that the broad language of the Vesting Order conveyed the property free and clear of the future claim for increased taxes that existed at the time of closing.

The appellant mortgagor appealed a summary judgment granting the respondent mortgagee possession of his residential property.

The mortgagee claimed the mortgage was in default because the mortgagor failed to remit GST and employee tax deductions to the CRA for his business, resulting in a CRA lien on the property.

The Court of Appeal allowed the appeal, finding that whether unremitted GST constitutes a default under the standard charge terms of a residential mortgage is a novel issue of first instance that requires a full trial.

The Court also found a genuine issue for trial regarding whether the mortgagor had put the mortgage into good standing under s. 23 of the Mortgages Act by tendering the outstanding principal and interest.

The appellant appealed a trial judgment regarding an agreement to make a second mortgage loan.

The Court of Appeal found that the trial judge erred in concluding that the written terms of the agreement were the only terms.

The Court held that the conduct of the parties established an implied term that the second mortgage transaction would not be completed if it triggered a default under the first mortgage.

The appeal was allowed and the action dismissed.