Stephen Schwartz

The appellant appealed a summary judgment holding it jointly liable with a related corporation for wrongful dismissal under the common employer doctrine.

The court held that the motion judge applied the correct legal test, made findings available on the record, and committed no palpable and overriding error in concluding that both corporations jointly ran the hotel and intended to create an employment relationship with the deceased employee.

The court also upheld the conclusion that res judicata and abuse of process did not bar the estate's subsequent claim against the appellant, because the appellant was not a defendant in the initial action and the corporate relationship was not easily discernable.

The appeal was dismissed with partial indemnity costs to the respondent.

The moving parties brought a motion for leave to appeal a costs order.

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

The plaintiff estate brought a motion for summary judgment against two defendants, a numbered company and its director, arguing they were common employers with another related company against which the plaintiff already held an unsatisfied wrongful dismissal judgment.

The defendants brought a cross-motion for summary judgment, arguing the claim was barred by res judicata and that they were not common employers.

The court granted the plaintiff's motion against the corporate defendant, finding a clear objective intention to create an employment relationship within the interrelated family hotel business.

The court dismissed the claim against the individual director, finding no intention for him to be personally liable.

The defendants' motion was dismissed, as the common employer doctrine prevents the unjust application of res judicata to shield related corporate entities.

The appellants, Jordan Rudiger Zukowski and Rudi Heinz Edwin Zukowski, appealed an order granting summary judgment to the respondent, MarshallZehr Group Inc., regarding the enforceability of a personal guarantee for a project financing loan.

The Court of Appeal dismissed the appeal, finding no error in the motion judge’s refusal to permit cross-examination of the respondent’s representative and no reviewable error in the finding that the respondent did not act in bad faith.

The court held that the issues raised were properly resolved on the record and that the personal guarantee was valid and enforceable.

The court voided six promissory notes and struck out related mortgages registered by the plaintiffs against the defendants' properties, finding that the notes were materially altered without consent, contrary to the Bills of Exchange Act.

The court also declined to grant equitable mortgages or certificates of pending litigation, citing the plaintiffs' inequitable conduct and failure to meet statutory tests.

The decision addresses issues of forged notes, after-acquired property, corporate personality, and the application of the Family Law Act to matrimonial homes.

This consolidated trial addressed multiple disputes between Raymond Nicolini (through Sayward Investments Inc., InSite Construction Management Inc., and King Station Facility Inc.) and Vilson Da Silva (through Leblon Carpentry Inc., Leblon Drywall Inc., and his wife Daenn Monteiro Loureiro).

The court found that Da Silva, Loureiro, and Leblon Carpentry breached a 2019 loan agreement with Sayward, owing $38,909.29.

A 2020 advance from Sayward to Leblon Carpentry and Da Silva was determined to be a loan, not a joint venture, with $203,735.20 owing.

The mortgage on the matrimonial home was held to secure only the 2019 loan, not the 2020 loan, due to lack of spousal consent.

The drywall contract between InSite and Leblon Drywall was found to have a price of $1,330,742, and Leblon Drywall was deemed overpaid, leading to the dismissal of its breach of contract claim.

The parties were found to have mutually terminated the drywall contract, releasing each other from claims for deficiencies and overpayments.

Claims of oppression and conspiracy brought by InSite were dismissed, as InSite was not a proper complainant for oppression and the lien claim lacked a predominant purpose to injure.

The moving parties brought a motion for leave to appeal an order.

Neither party uploaded materials to CaseLines despite obligations under the Consolidated Practice Direction and reminders from the court office.

The Divisional Court dismissed the motion as abandoned without costs.

The plaintiffs, Pilbro III Inc. and E.D. Carpenters Ltd., sought leave to bring a motion to compel the defendants to answer refused questions from examination for discovery.

This motion was brought after the action had been set down for trial and past multiple court-ordered deadlines for interlocutory motions.

The court dismissed the motion, emphasizing the need to combat the "culture of complacency" in civil litigation and enforce scheduling orders, despite acknowledging the defendants' own delays in providing undertakings.

The case involved three interrelated motions within the receivership of ProjectCo, the entity responsible for the St. Michael’s Hospital redevelopment.

Unity Health Toronto sought to lift a stay of proceedings to terminate the Project Agreement due to ProjectCo's defaults.

The Bank of Montreal, as Administrative Agent for the Lenders, sought an order to assign ProjectCo's rights to enforce a Tower Interim Completion (TIC) payment and to dismiss Unity's motion.

Unity also sought to dismiss the Lenders' TIC application for lack of standing.

The court granted Unity's motion to lift the stay and to dismiss the Lenders' TIC application, and dismissed the Lenders' assignment motion.

The court found Unity would be materially prejudiced by the stay's continuation, while the Lenders' prejudice was contractually prescribed.

The Lenders lacked standing for the TIC application, and no legal or equitable assignment of ProjectCo's rights to enforce the TIC payment existed.

This decision addresses the issue of costs following a second oppression remedy application and a cross-motion.

The applicant, Michelle Gojkovich, was largely successful in her motion, which sought the appointment of a monitor and other relief, while the respondents' cross-motion to disqualify the applicant's counsel was dismissed.

The court awarded the applicant $60,000 in partial indemnity costs, payable jointly and severally by John Rody and Organic Products Consulting Inc., explicitly exempting Buhbli Organics Inc. from liability.

The court also reiterated an earlier order for John Rody to reimburse Buhbli Organics Inc. for legal fees paid on his behalf.

The appellants brought a motion for leave to appeal the order of Perell J. dated December 28, 2023.

The Divisional Court denied the motion for leave to appeal and awarded costs to the respondent fixed at $5,000 all inclusive.

The Court of Appeal for Ontario issued a costs endorsement following an appeal where the trial judge's liability finding was upheld, but the damages award was set aside for a new hearing.

Due to divided success on appeal, the parties agreed to bear their own appeal costs.

The court varied the trial judge's costs order, reducing the amount payable by the appellant to the respondent by one-third (from $251,706.10 to $167,804.07), reflecting the partial success on appeal and the uncertainty regarding the original offer to settle.

The costs of the new damages hearing were left to the discretion of the presiding judge.

The applicant brought a motion within an ongoing oppression remedy application to join a related corporation, Buhbli Brands Inc., as a respondent and to appoint a monitor over the respondents' businesses.

The respondents brought a cross-motion to dismiss the applicant's motion and disqualify her counsel, alleging the applicant unlawfully accessed the individual respondent's email accounts and obtained privileged communications.

The court found that the applicant's counsel acted appropriately by segregating unread privileged documents and notifying opposing counsel.

Finding no prejudice to the respondents, the court dismissed the cross-motion, joined the related corporation on a go-forward basis, and appointed a monitor to oversee the businesses.

The appellant (vendor) appealed a trial judgment finding it breached an Agreement of Purchase and Sale (APS) for development lands and awarding the respondent (purchaser) over $11 million in lost expected profits.

The Court of Appeal upheld the trial judge's finding of liability, confirming the vendor's breach for wrongly asserting the purchaser failed to pay a further deposit and that the purchaser was ready, willing, and able to close without tendering.

However, the Court allowed the appeal on damages, ruling that the trial judge erred by departing from the normal measure of damages for real estate breaches (difference between contract price and market value on closing date).

The Court clarified that the remoteness test determines the *type* of loss, not the *measure*, and that market value inherently accounts for development potential.

A new hearing was ordered to assess damages using the normal measure.

The moving parties brought motions for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motions for leave to appeal and awarded costs to the respondent in the fixed amount of $5,000 all inclusive.

Following a summary judgment granting the plaintiff $567,767.25 and possession of a property, the plaintiff sought costs of $40,659.20 on a substantial indemnity basis.

The court found that the standard charge terms entitled the plaintiff to substantial indemnity costs and there were no special circumstances to depart from this agreement.

The court awarded the requested amount, noting the serious allegations made by the defendant justified the use of senior counsel.

The plaintiff, 1000249084 Ontario Inc., sought summary judgment for a mortgage debt and sale of a property.

The defendant, Payam Andazesgishahr, argued collusion between the plaintiff (owned by the son of his former business partner) and his former partner, and that the plaintiff acted in bad faith.

The defendant also argued the proceeding was deficient because his wife, Ima Tavakkoli, a co-resident in the matrimonial home, was not served.

The court found no genuine issue of collusion or bad faith, noting the plaintiff's actions were reasonable business decisions.

The court also dismissed the argument regarding the wife's non-service, finding she had actual knowledge of the proceedings and that the argument was a delay tactic.

The court granted judgment to the plaintiff for the mortgage amount and an order for possession, directing the title of the proceeding to be amended to add the wife as a defendant and staying the judgment for 30 days to allow her to seek relief.

The appellants appealed an order directing funds paid into court to be released to the respondent, which were secured by a mortgage.

The Court of Appeal quashed the appeal for lack of jurisdiction, finding the order to be interlocutory rather than final.

The court reasoned that the order did not finally determine the substantive issues between the parties, such as claims of improvident realization or breach of duty, which remained subject to a separate, unscheduled application.

Following a successful oppression remedy application where the court ordered the winding up of the corporation, the applicant sought costs on a substantial indemnity scale.

The court agreed with the applicant's unopposed costs submissions and awarded costs of $158,297.43, payable by the individual respondent rather than the corporation.

The payment of the disbursement for an appraisal report was made conditional upon the applicant providing proof of personal payment.

This decision concerns an oppression remedy application under the Ontario Business Corporations Act.

Following a prior ruling that declared oppressive conduct and ordered the winding up of Buhbli Organics Inc., the court addresses the appointment of a liquidator.

The respondents opposed the appointment and sought a stay pending appeal, arguing the hearing should be deferred.

The court dismissed the respondents' arguments, finding the liquidator's appointment integral to the previous order, and proceeded to appoint MNP Ltd. as liquidator, rejecting the respondents' cost concerns as the rates were market-based.

The court also issued an order with specific powers for the liquidator, clarifying its role and limitations, and ordered a judgment for $170,000 against the respondents for non-compliance with a previous order.