Stephen M. Turk

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 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 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.

This decision addresses a motion for security for costs arising from an aborted real estate transaction involving a gasoline station.

The plaintiff (899) had initiated an action for a Certificate of Pending Litigation (CPL) after the vendor (465) re-sold the property to another defendant (929), who obtained an indemnity.

The court found it premature to determine the ultimate disposition of the plaintiff's $100,000 deposit for the main action.

However, it allocated portions of the deposit ($40,000 for 929 and $25,000 for 465) as security for costs related to the pending CPL motion and other stages already encountered.

The plaintiff was deemed the more successful party on this security for costs motion and was awarded partial indemnity costs.

The plaintiff brought a motion for summary judgment seeking repayment of US$720,000 lent to the defendant at an interest rate of 10% per month.

The defendant, a lawyer, claimed he acted merely as a conduit for the plaintiff's investments in gold with a third-party broker.

The court found a valid oral loan agreement, rejecting the defendant's conduit defense due to inconsistencies in his evidence and lack of corroboration.

The court also addressed the legality of the interest rate under section 347 of the Criminal Code, reading it down to the maximum legal rate of 60% per annum.

The plaintiff's motion for summary judgment was granted.

The plaintiff, Lidia Kuleshnyk, brought a motion seeking an order to preserve future vendor take-back mortgage payments from the sale of property owned by the defendant, Herta Kuleshnyk, by having them paid into court.

The motion was brought pursuant to Rules 45.01 and 45.02 of the Rules of Civil Procedure.

The court applied the three-part test from Sadie Moranis Realty Corp. v. 1667038 Ontario Inc., finding that the plaintiff established a claim to a specific identifiable fund (future mortgage payments) and a serious issue to be tried regarding her entitlement under a 2009 agreement.

While there was no direct evidence of dissipation, the court found a real concern given the defendant's prior actions (reverse mortgage without knowledge).

The court ordered the final mortgage payment of approximately $1,581,000 due on April 8, 2019, to be paid into court, allowing the defendant to retain earlier payments and funds held in trust to manage tax obligations.

No costs were awarded as the result was divided.

The Ferawana family sought specific performance of an Agreement of Purchase and Sale for a residential property from the Uracs, or the return of their deposit.

The Uracs maintained that Ferawana failed to close and sought forfeiture of the deposit.

The court found that the purchaser, Ferawana, did not comply with his contractual obligations, including a waived financing condition, and that the vendors, the Uracs, did not breach any duty of good faith or honest performance.

The court dismissed Ferawana's application and granted the Uracs' request for the deposit, finding no basis for relief from forfeiture.

The plaintiff initiated an action alleging fraud, deceit, and misrepresentation against the defendants concerning a property transaction and mortgage.

Despite early settlement offers from the defendants, the plaintiff did not accept them.

The action was ultimately dismissed on consent immediately prior to a scheduled summary judgment motion.

The court, in this costs ruling, awarded the defendants full indemnity costs, determining that the plaintiff's allegations were ill-founded and significantly detrimental to the defendants' professional reputations, thereby justifying a higher scale of costs.

The applicant sought payment of the outstanding balance under a promissory note after the respondents failed to make required quarterly instalment payments.

The proceeding was brought under Rule 14.05 of the Rules of Civil Procedure for determination of rights dependent on the interpretation of a contract.

The court held that the note required payment of the full $100,000 instalment on the first day of each quarter and rejected the respondents’ argument that payment could be completed anytime within the quarter.

The court further held that written notice of default had been provided and that the respondents failed to cure the default within the 30‑day notice period required to avoid the acceleration clause.

The entire outstanding balance therefore became immediately due and payable.