Spencer F. Toole

The court addresses a motion by the estate trustees of Carmen Debono to hold certain siblings in contempt or, alternatively, to strike their pleadings for failure to comply with a court order requiring disclosure of business email credentials and documents.

The court finds repeated, deliberate non-compliance and strikes the pleadings of David Debono and Elizabeth Muscat, stays the wrongful dismissal action until pleadings are amended, and awards significant costs.

The court declines to proceed with contempt, emphasizing that such proceedings are a last resort in civil matters.

This decision concerns two related lawsuits between siblings over the estate of their late mother, Carmen Debono.

The first action is for wrongful dismissal and oppression by David Debono and Elizabeth Muscat against the estate, its trustees, and two corporations.

The second is a claim by the estate, through its trustees, against David Debono, Elizabeth Muscat, and Jennifer Nesci for recovery of debts and alleged misappropriation of funds.

The court addresses interim motions for distributions and legal fees, as well as document production and the effect of an in terrorem clause in the will.

Both motions are dismissed, with the court emphasizing the need for transparency and full disclosure, and declining to enforce the in terrorem clause or grant interim relief at this stage.

The applicant sought a beneficial interest in a residential property owned by his parents (the respondents) based on the equitable doctrines of proprietary estoppel and unjust enrichment.

The applicant claimed an oral agreement from 2005 to transfer title if he made mortgage payments and repaid the $100,000 downpayment.

The respondents admitted an oral agreement but asserted it expired in 2007 due to the applicant's failure to repay the downpayment by a May 2007 deadline, treating him as a long-term tenant.

The court dismissed the application, finding the applicant failed to prove proprietary estoppel or unjust enrichment.

The judge preferred the respondents' evidence, concluding the oral agreement was time-limited and had elapsed, and that the applicant was merely a tenant who received the benefit of living in the home for a reasonable rent.

The Certificate of Pending Litigation on the property was lifted.

The appellant, Grandfield Homes (Kenton) Ltd., appealed a lower court decision that denied its request for a trial on damages beyond forfeited deposits in a failed residential real estate transaction.

The Court of Appeal upheld the application judge's decision, finding that the claim for additional damages was not sufficiently pleaded in the notice of application or supporting evidence.

The court emphasized that relief sought must be precisely stated in pleadings and that counsel's confirmation during cross-examination that additional damages were not sought in the application was binding.

The court also agreed that ordering a separate trial on damages would result in an unnecessary bifurcation and multiplicity of proceedings, causing potential prejudice to the respondent.

The plaintiffs (landlords) were entirely successful in a landlord and tenant dispute against the defendants, who had failed to pay rent for three years and gamed the system by fabricating a tenancy for an unidentified spouse.

The court awarded the plaintiffs costs of $45,842.95 on a substantial indemnity basis.

Furthermore, the court found that the defendants' lawyer had allowed his client to abuse the administration of justice and ordered the lawyer to personally pay the costs if the defendants failed to do so within thirty days.

The plaintiff landlords brought a motion for default judgment against the defendant tenant corporation and its principal for over $300,000 in rent arrears and possession of the residential premises.

The defendants brought a cross-motion to set aside their noting in default.

The court found the defendants had engaged in a bad faith campaign to game the system, occupying the premises rent-free for three years while illegally using it for business purposes.

The court dismissed the motion to set aside the noting in default, pierced the corporate veil to hold the principal jointly and severally liable, granted default judgment for the rent arrears, awarded $100,000 in punitive damages, and ordered immediate eviction.

The plaintiffs brought a motion for default judgment in a landlord and tenant dispute involving approximately $300,000 in rent arrears.

The defendants resisted and moved to set aside the noting of default.

On the day of the hearing, the parties presented a proposed consent order to terminate the tenancy and grant a writ of possession.

The court declined to issue the order because it mistakenly stated that one of the defendants had been noted in default, failed to properly identify that defendant, and did not address an outstanding counterclaim.

The motion was adjourned to allow the parties to either argue the motion on its merits or resolve the issues.

The applicant sought a declaration of entitlement to a deposit paid by the respondent under a contract to purchase a new build home, and a direction for a trial on further damages.

The respondent refused to close, alleging misrepresentations regarding square footage and finish quality.

The court found no valid misrepresentations, enforcing the entire agreement clause against the respondent despite claims of limited English and alleged verbal assurances.

The court declared the applicant entitled to retain the $502,500 deposit, finding a 15% deposit not unconscionable.

However, the court dismissed the applicant's request for a trial on further damages, noting it was not sought in the initial application and would lead to inefficient bifurcation of proceedings.

The plaintiff employer brought a motion for an interlocutory injunction to shut down or restrict a competing deli opened by two former long-term employees.

The plaintiff argued the employees were fiduciaries.

The court found the employees were managers but not fiduciaries, as they lacked strategic authority and the employer was not peculiarly vulnerable to their departure.

The court also found the balance of convenience favoured the defendants and damages would be an adequate remedy.

The motion for an injunction was dismissed.

The defendants, Darren Hendren and Delaxan Ithayaneesan, brought a motion to vary a Mareva injunction to access frozen proprietary assets for living expenses and legal fees, citing reduced income due to the COVID-19 pandemic.

The court dismissed the motion, finding that the defendants failed to provide frank disclosure of their assets, income, and expenses, and did not demonstrate that they had no other available assets.

The court also found that a balancing of interests favored the plaintiff, given the strong prima facie case of wrongdoing and the risk of asset dissipation.

The Court of Appeal for Ontario heard an appeal regarding a commercial lease dispute.

The appellant landlords re-entered the leased premises after the respondent tenants defaulted on rent.

The application judge found the re-entry wrongful due to a defective notice and premature action.

The Court of Appeal reversed this decision, finding that the landlords were entitled to re-enter based on a prior, continuing breach of the lease, specifically the failure to pay accelerated rent as per a non-waiver clause.

The Court emphasized that the landlords had not waived the breach by accepting partial payments.

The trial judge's order was set aside, and the original application dismissed.

The appellants appealed a Superior Court decision granting the condominium corporation an order to enter and inspect a unit following a complaint about noise emanating from the staircase.

The appellants denied entry and issued a trespass notice.

The appellants raised seven grounds of appeal in their factum but narrowed their argument at hearing to a single contention that there was no evidentiary basis for the condominium board to carry out an inspection.

The Court of Appeal dismissed the appeal, finding that the condominium corporation had a right and duty under the Condominium Act to ensure compliance with legislation and to inspect the unit to gather information about the nature and extent of the suspected problem.

The applicant, Metropolitan Toronto Condominium Corporation No. 1328, sought full indemnity costs after successfully obtaining an order permitting entry into a condominium unit owned by 2145401 Ontario Inc. and occupied by Paul Starkman.

The respondents opposed, arguing for partial indemnity costs based on usual civil procedure principles.

The court, exercising its discretion under the Courts of Justice Act and Rule 57.01, awarded the applicant partial indemnity costs of $10,000 in fees and $827.06 in disbursements, inclusive of HST, finding that while the applicant was wholly successful, neither party was blameless in the underlying dispute, and the condominium's indemnity provisions did not mandate full indemnity for legal costs.

A condominium corporation appealed from a damages award of $18,000 and sought leave to appeal a costs award of $17,000 made under section 134(5) of the Condominium Act, 1998.

The respondent unit owners had leased their condominium to tenants who vandalized common elements.

The corporation claimed $33,381.28 in damages and $52,637.56 in costs.

The application judge found certain repair expenditures disproportionate and reduced the damages award.

The Court of Appeal allowed the appeal, finding the application judge erred in assessing security camera installation costs and in conflating two distinct types of costs under the Act.

The damages award was increased to $25,458 and the costs award was increased to $34,000.

The plaintiff tenant sought a declaration that a restrictive clause in its commercial lease prevented the landlord from leasing space in the plaza to a Tim Hortons franchise.

The court was tasked with interpreting the restrictive clause, specifically whether it should be construed statically (comparing to the tenant's business in 1991 when the clause was introduced) or dynamically (comparing to the current tenant's business).

The court adopted a static interpretation, finding that the proposed Tim Hortons business was not of a similar nature to the original "Corner Restaurant" in terms of menu and eat-in seating facilities.

Even under a dynamic interpretation, Tim Hortons was found not to be similar to the current "Wimpy's" restaurant.

The motion for the declaration was dismissed, and the defendant was awarded costs.

The plaintiff moved to continue a Mareva injunction freezing assets allegedly connected to a multi‑million dollar international fraud scheme.

One defendant opposed continuation of the injunction, arguing material non‑disclosure, delay, lack of evidence connecting the defendants to the fraud, absence of risk of dissipation of assets, and insufficiency of the plaintiff’s undertaking as to damages.

The court held that any alleged non‑disclosure regarding the plaintiff corporation’s status or its principal’s personal bankruptcy was not material and did not justify dissolving the injunction.

The court further found that the criteria for a Mareva injunction were met, including a strong prima facie case of fraud and a risk of dissipation of assets inferred from suspicious financial transfers.

The Mareva injunction was continued until trial or further order, subject to conditions requiring proof of the plaintiff corporation’s good standing and notice to the principal’s bankruptcy trustee.

Following a successful motion by the plaintiffs for non-party production of investigative materials from the Special Investigations Unit under Rule 30.10 of the Rules of Civil Procedure, the court addressed costs.

Although the plaintiffs obtained the production order, the court declined to award costs.

The court held that the SIU reasonably opposed the motion given its public policy mandate, confidentiality assurances to witnesses, and status as a non-party to the litigation.

The evidence and submissions from the SIU assisted the court in determining whether the exceptional remedy of non-party production should be granted.

An elderly condominium unit owner was allegedly injured when an unleashed dog owned by other residents attacked her on the condominium’s common elements.

The plaintiff sued the dog owners under the Dog Owners' Liability Act and the condominium corporation for negligence and under the Occupiers’ Liability Act.

The condominium corporation brought a Rule 21 motion to dismiss the action, arguing that the Dog Owners’ Liability Act exclusively governed liability and that it was not a dog owner or harbourer.

The court held that the Act does not preclude negligence or occupiers’ liability claims against a non‑owner of the dog and that it was not plain and obvious the claim against the condominium corporation could not succeed.

The motion to dismiss was therefore refused.