Stephen M. Turk

The estate brought an application for possession of a condominium in which the deceased's common-law partner continued to reside after her death.

The common-law partner brought a cross-application for dependant's support under the Succession Law Reform Act.

The court found that the deceased's 2006 will was not a mutual will and thus did not bar the support claim.

The court ordered the partner to vacate the condominium as he had no legal right to remain, but found him to be a dependant entitled to support.

The court ordered a lump sum for arrears of living expenses and ongoing periodic support of $3,300 per month for his lifetime.

The court considered whether Gan Yeladim Day Care Centre (GYDC) was entitled to remain in the premises of Beth Emeth Bais Yehuda Synagogue (BEBY) after the expiry of its lease and subsequent failed negotiations for a new lease.

The court found that GYDC had properly given notice of its intention to renew, and that the lease was effectively extended for another year based on the parties’ conduct and history.

The court granted GYDC equitable relief, allowing it to remain until August 31, 2026, to find a new location, and awarded costs against BEBY.

The Court of Appeal for Ontario dismissed Stephen Harbour’s appeal from the order of Justice William S. Chalmers, which required Harbour to indemnify Puneet Brar and Realtus Law Professional Corporation for payment of a Canada Revenue Agency lien on Harbour’s property.

The court found no error in the application judge’s findings regarding the interpretation of the indemnity agreement, the need to convert the application to an action, or the finding of unjust enrichment.

The appeal was dismissed with costs to the respondents.

The appellant appealed the dismissal of his claim for a resulting trust and the granting of the respondents’ claim for partition and sale of a property.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the resulting trust claim was statute-barred under the Real Property Limitations Act, lacked material corroboration under the Evidence Act, and would have been rebutted by evidence of a gift.

The court also upheld the dismissal of the appellant's claim for compensation for work done on the property and the order for partition and sale.

A motion to adduce fresh evidence was also dismissed.

The applicants, a lawyer and her firm, sought judgment against the respondent for $564,707.47 plus interest and costs.

The applicants had paid this amount to discharge a Canada Revenue Agency (CRA) lien on the respondent's property, which they had undertaken to clear during a property sale.

The respondent had previously provided incomplete lien discharge statements and refused to grant the applicants direct access to his CRA account, leading to the execution of a declaration and indemnity agreement.

The respondent argued the indemnity was ambiguous (contra proferentem) or that he did not understand its nature (non est factum), and alternatively, that unjust enrichment did not apply.

The court dismissed the respondent's arguments, finding the indemnity clear and applicable, and that the elements of unjust enrichment were met.

Judgment was granted in favour of the applicants.

The applicant, Amsterdam Square Apartments Inc., sought court approval for a plan of arrangement under section 182 of the Business Corporations Act to lower shareholder voting thresholds from 90-100% to a 2/3 majority.

The purpose was to address difficulties in managing the non-profit co-operative due to high approval requirements for actions like share reallocation, sublicensing, share transfers, and capital expenditures.

The respondent opposed, arguing the application was premature and lacked sufficient detail.

The court denied the application, finding it premature because the necessity for sweeping changes was not fully demonstrated, and the plan lacked specific details on how the Board intended to address the underlying issues via bylaw amendments after the thresholds were lowered.

The court emphasized that the specific bylaw proposals should be presented to shareholders and the court as part of the "fair and reasonable" analysis.

Costs were awarded to the respondent.

This endorsement addresses the issue of costs following a judgment where the plaintiffs largely succeeded in their action for partition and sale and successfully defended against the defendant's counterclaim, with the exception of a minor payment to the defendant.

The plaintiffs sought costs on a substantial indemnity basis, or alternatively, partial indemnity.

The defendant argued for a lower award, citing partial success and excessive hours claimed by the plaintiffs.

The court determined that the defendant's conduct did not warrant substantial indemnity costs, finding that hard-fought litigation alone is insufficient.

The court awarded costs on a partial indemnity basis, reducing the plaintiffs' claimed hours due to some duplication of work, and ordered the defendant to pay the plaintiffs an all-inclusive amount of $125,000.00.

The court also noted that offers to settle could not be assessed for Rule 49.10 consequences due to fluctuating property values.

The defendants sought a third adjournment of two scheduled motions, including their cross-motion to dismiss the action or set aside default judgment, and the plaintiffs' motion to lift a stay on a writ of seizure and sale.

The defendants argued for the adjournment to file a new expert report after their initial expert's cross-examination raised concerns about the adequacy of the opinion.

The plaintiffs opposed, citing repeated delays and the defendants' attempt to "patch up" their case with new evidence.

The court denied the adjournment, emphasizing the need for finality, the waste of judicial resources, and the impropriety of introducing new evidence after cross-examination to address perceived weaknesses, aligning with the principles against case-splitting.

The plaintiffs sought partition and sale of a family property, while the defendant counterclaimed for a resulting trust, asserting 100% beneficial ownership, and reimbursement for property work.

The court dismissed the defendant's resulting trust claim, finding he failed to prove he contributed more than 50% of the purchase price and that the claim was statute-barred.

The court granted the plaintiffs' request for partition and sale, finding no grounds for refusal.

The defendant's claims for past work were largely dismissed as statute-barred, except for a recent invoice for waterproofing.

This appeal concerned the distribution of proceeds from a property sale, specifically regarding the priority of a third mortgage, an alleged equitable fourth mortgage, and a writ of execution.

The appellants, lenders, sought recognition of an equitable fourth mortgage and a specific interest calculation for their third mortgage.

The respondents, execution creditors, challenged the third mortgage's interest rate.

The Court of Appeal allowed the appeal, declaring the existence of an equitable fourth mortgage, but dismissed the appellants' claim for interest to run until full payout.

The respondents' cross-appeal regarding the third mortgage interest rate was dismissed.

This motion concerned an application by 2524991 Ontario Corporation (252) for an interim order to stay the enforcement of an arbitral award (the Final Award) obtained by 2650795 Ontario Inc. (265), pending the resolution of an oppression action brought by 252 against 265. 252 argued that 265 engaged in oppressive acts by refusing to cooperate in the sale of a jointly owned property, which would allow 252 to satisfy the Final Award.

The court granted judgment in the Enforcement Application by consent but then heard 252's motion to stay.

The court found that allowing enforcement would be oppressive and an abuse of process, and that 252 met the stringent test for a stay under s. 106 of the Courts of Justice Act and the three-part RJR-MacDonald test for interim relief under s. 248(3) of the Business Corporations Act.

The court also determined that the "clean hands" doctrine did not apply as the impugned conduct (misrepresentation) was already litigated and compensated in arbitration.

The stay was granted, without prejudice to a future application for a court-directed sale of the property.

The applicants sought to determine their entitlement to the proceeds of sale of a property, claiming priority based on a third mortgage and an equitable fourth mortgage.

The execution creditors challenged the interest rate on the third mortgage and the validity of the equitable fourth mortgage.

The court held that the interest rate on the third mortgage was governed by the underlying promissory note, which clearly set out an annual rate of 20% after maturity, complying with the Interest Act.

However, the court declined to grant an equitable fourth mortgage, finding that the terms were uncertain and the debtor had no intention of registering a mortgage when the right crystallized.

The corporate plaintiff sought leave to be represented by a non-lawyer in its action against its former landlords.

The defendants brought a cross-motion to dismiss the action because the plaintiff failed to appoint counsel after its previous lawyers were removed from the record.

The court dismissed the plaintiff's motion, finding the proposed non-lawyer representative unfit due to his lack of capability and his reprehensible, anti-Semitic statements.

The court granted the defendants' cross-motion, dismissing the action, and awarded the defendants $65,000 in costs on a substantial indemnity basis to sanction the proposed representative's egregious conduct.

The applicants sought an order for the partition and sale of a residential property co-owned with the respondent.

Due to the parties' inability to cooperate, the applicants requested the appointment of a third-party sales officer.

The court granted the application, appointing RSM to conduct the sale process to avoid further disputes and legal costs.

Costs of $15,833 were ordered to be paid to the applicants from the proceeds of the sale, effectively spreading the cost among all four owners.

The plaintiffs brought motions to compel the examination of a defendant on behalf of a corporate defendant and for further and better affidavits of documents from several defendants.

The parties agreed to dismiss the examination motion and portions of the production motion without prejudice.

The court ordered one defendant to produce certain financial documents relevant to personal enrichment and an itemized Schedule B list, but dismissed the remaining requests for further documents and better email descriptors, finding insufficient evidence of missing documents and that the current descriptors were proportionate.

The plaintiff sought over $20,000 in enforcement costs, including private investigator fees and legal costs, after obtaining a judgment and cost order against the defendants, who failed to make payments.

The court found it had jurisdiction to award costs beyond Rule 60.19 but deemed the private investigator fees and associated legal costs unreasonable and unnecessary, as an examination in aid of execution was a less expensive and available alternative.

The court awarded $7,139.60 plus HST for execution costs, including property/corporate searches, garnishment issuance, process server fees, and a portion of legal fees.

No costs were awarded for the motion itself due to mixed success.

In a conditionally certified class action concerning rescinded agreements to purchase hotel units and the refund of deposits, the Representative Plaintiffs brought a motion for an order requiring the Defendant to disclose the amount in dollars represented by insurance policies and/or deposits held by its real estate lawyers.

The Plaintiffs argued this information was necessary to retain new Class Counsel, as the Defendant was insolvent.

The Defendant refused, claiming solicitor-client or litigation privilege.

The court granted the motion, finding that the requested information (copies of agreements of purchase and sale and confirmation of deposit amounts) constituted raw data, not privileged information, and should have been disclosed under sections 5(3) and 12 of the Class Proceedings Act, 1992, to ensure the fair and expeditious determination of the class proceeding.

This is a costs endorsement following the denial of the applicant's request to appoint Section 3 counsel for Lynda Miziolek, an incapable person.

The respondent, Elizabeth Miziolek, sought costs on a partial and substantial indemnity basis.

The applicant, Alexandra Miziolek, argued for no costs or an offset due to divided success on other application segments.

The court found Elizabeth entirely successful on the discrete Section 3 counsel issue, which was not part of the original application and was deemed ill-conceived after a medical report confirmed Lynda's inability to instruct counsel.

The court awarded Elizabeth costs of $11,500 plus HST, to be paid by Alexandra.

Disbursements for the medical report were directed to be paid from Lynda's estate, acknowledging the public policy of not discouraging reasonable applications for vulnerable persons.

The applicant sought the appointment of Section 3 counsel under the Substitute Decisions Act for her mother, whose capacity was in issue amid a family dispute over powers of attorney.

The respondent opposed the appointment, relying on a geriatric psychiatrist's report concluding the mother had severe dementia, lacked capacity to instruct counsel, and would likely suffer significant emotional distress if forced to deal with an unfamiliar lawyer.

The court dismissed the motion, finding that while Section 3 counsel can sometimes be appointed even when a person cannot provide instructions, in this specific case it would not be in the mother's best interests, would be ineffective, and would not assist in resolving the underlying litigation.

The plaintiff, a shell corporation, brought a motion for leave to issue a certificate of pending litigation (CPL) regarding a gas station it had agreed to purchase.

The transaction failed to close on the extended closing date, and the vendor subsequently sold the property to a third party.

The court dismissed the motion, finding no triable issue that the agreement of purchase and sale remained in effect.

Furthermore, the court held that the property was not unique, damages would be an adequate remedy, and the plaintiff's status as a shell corporation raised concerns about its ability to pay damages if unsuccessful at trial.