Stephen Schwartz

The applicant and respondent were former romantic and business partners who co-owned a corporation.

Following the breakdown of their personal relationship, the respondent excluded the applicant from the business, denied her remuneration, and diverted corporate assets to his own consulting company.

The applicant sought an oppression remedy, requesting that the respondent be ordered to purchase her shares.

The court found that the respondent's conduct was oppressive and violated the applicant's reasonable expectations.

However, because the respondent could not afford to buy the shares and the business was entirely dependent on him, the court ordered the respondent to pay $170,000 in damages for the diverted remuneration and ordered the corporation to be wound up.

The defendants moved to dismiss or stay the plaintiff's action under Rule 21.01(3) due to pending related proceedings.

The court rejected arguments of res judicata and issue estoppel, finding no final determinations had been made.

It allowed the action to proceed against one defendant, Vilson Da Silva, as the claims were distinct and could not be brought in the existing lien action due to the Construction Lien Act.

However, claims against Leblon Carpentry were dismissed for lack of factual basis, and claims against Leblon Drywall were dismissed (without prejudice) as they were duplicative of an existing counterclaim in the lien action and contrary to the purpose of the Construction Lien Act.

To ensure judicial economy and avoid multiplicity of actions, the court ordered the transfer of a related Barrie action to Brampton and directed that all three interconnected actions be tried together or sequentially.

Following the dismissal of the applicant's proceeding for an oppression remedy and fraudulent conveyance, the respondents sought substantial indemnity costs based on an offer to settle and unproven allegations of fraud.

The court found that Rule 49.10 did not entitle the respondents to substantial indemnity costs and that the allegations of fraudulent conveyance did not carry the moral opprobrium required for an elevated costs award.

The court also rejected the applicant's request for equitable set-off.

Costs were awarded to the respondents on a partial indemnity basis fixed at $18,550.

The applicant, the largest creditor of a bankrupt sports medicine clinic, brought an application under s. 38 of the Bankruptcy and Insolvency Act and the oppression remedy provisions of the Business Corporations Act.

The applicant alleged that the individual respondents flipped the bankrupt's assets and goodwill to a new corporation without paying fair market value, constituting a fraudulent conveyance or transfer at undervalue.

The court dismissed the application, finding no evidence that any assets with realizable value were conveyed to the new corporation prior to bankruptcy, nor any evidence of the business's going concern value.

The plaintiff advanced two loans to the corporate defendant for construction projects.

The first loan was secured by a collateral mortgage on the personal defendants' residence.

The plaintiff alleged the second loan was also secured by the same mortgage via an oral agreement, and sought summary judgment for outstanding amounts including a profit-sharing agreement.

The defendants argued the second advance was an unsecured joint venture investment and brought a motion to discharge the mortgage upon paying the remaining interest on the first loan into court.

The court dismissed both motions, finding that significant credibility issues regarding the nature of the second advance and the alleged oral agreement required a full trial.

Following an order enforcing the plaintiff's mortgage against the proceeds of sale of a mortgaged property, the plaintiff sought costs of $33,342.15 on a substantial indemnity basis as provided in the mortgage.

The defendants argued the plaintiff was not entitled to costs for a prior motion to set aside a default judgment that was settled and deemed abandoned.

The court held that under Rule 37.09(3), the plaintiff was entitled to costs of the abandoned motion.

The court found the claimed costs were proportionate and reasonable, awarding the full amount sought.

The plaintiff mortgagee brought a motion for payment of funds held in court from the sale of the defendants' home.

The defendants opposed, arguing the plaintiff's claim merged in a default judgment, the mortgage was released by an agreement to take keys to a separate condominium, and the plaintiff breached duties as a mortgagee in possession.

The court rejected the defendants' arguments, finding no requirement for a monetary judgment before enforcing security, the alleged agreement could not bind the proceeds in court given a prior consent order, and claims of improvident realization were not properly before the court.

The motion was granted.

The appellants, a group of subcontractors and a bank, appealed an application judge's decision that rescission of surety bonds might be possible even if it affects innocent third parties.

The bonds were issued by Zurich Insurance Company Ltd. for a large construction project, but Zurich later discovered alleged fraudulent misrepresentations and collusion that induced it to issue the bonds.

The appellants sought a declaration that rescission was unavailable as a matter of law due to the involvement of innocent third parties.

The Court of Appeal dismissed the appeal, affirming that prejudice to third parties is not an absolute bar to rescission, especially in cases of fraudulent misrepresentation, and that such a determination requires a full factual record at trial.

The defendants brought a motion to stay the plaintiffs' oppression and breach of fiduciary duty action in favour of arbitration under s. 7 of the Arbitration Act, 1991.

The parties, who are siblings, had previously settled an arbitration but reserved rights regarding the sale of certain properties.

The court applied the Haas framework and found there was an arguable basis that the arbitral panel had jurisdiction over the dispute.

The action was stayed pending the outcome of the arbitration, with costs awarded to the defendants.

The plaintiff real estate brokerage sought an interlocutory injunction to enforce restrictive covenants against several former agents who left to join a competing brokerage.

The court dismissed the motion, finding the spatial restrictions in the agreements ambiguous and the temporal limitations unreasonable.

The court also found the plaintiff did not come with clean hands, having previously breached its agreement with the lead defendant by bringing in a competing team without consultation.

The plaintiff failed to establish a strong prima facie case, irreparable harm, or that the balance of convenience favoured an injunction.

Following the dismissal of the plaintiff's motion for a certificate of pending litigation, the successful defendant sought costs.

The plaintiff argued costs should be reserved to the trial judge or reduced.

The court rejected the plaintiff's arguments, finding it appropriate to fix costs immediately.

Because the defendant had made an offer to settle that was as favourable as the outcome, the court awarded partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixing the total costs at $30,655.83.

The plaintiff brought an undertakings and refusals motion seeking production of documents relating to a disputed profit-sharing agreement for a construction project.

The defendants argued the documents were irrelevant as the agreement did not cover that project and sought to bifurcate production until entitlement was proven.

The court found the documents relevant to determining both the existence and quantum of the alleged profit-sharing agreement and declined to bifurcate production.

The court ordered production of the specific items refused at the examination for discovery.

This appeal concerned the validity of an email notice of waiver of a development condition in an Agreement of Purchase and Sale.

The appellants argued that the notice had to be hand-delivered, while the respondent contended that email delivery was sufficient given the contract's terms and the parties' communication practices.

The Court of Appeal upheld the trial judge's decision, finding that the email notice was valid.

The court emphasized a holistic interpretation of the agreement, giving precedence to negotiated terms in Schedule A over standard form provisions, and considering the parties' established practice of email communication.

The appeal was dismissed.

The plaintiff, City Core Consortia Limited, moved for leave to register a certificate of pending litigation (CPL) against a property owned by the defendant, 2549386 Ontario Inc. City Core claimed specific performance and damages for breach of contract and negligent misrepresentation, asserting a reasonable claim to an interest in the property.

The defendant argued the agreement was properly terminated due to the plaintiff's failure to deliver a required deposit and that equities did not support a CPL.

The court dismissed the motion, finding no triable issue regarding City Core's claim to an interest in the property, particularly given the "time is of the essence" clause and the plaintiff's failure to pay the deposit.

The court also found that the equities, including a non-registration clause and the plaintiff's delay, favored the defendant.

The appellant casino appealed a Small Claims Court decision awarding the respondent players a 1000:1 payout for a Pai Gow Poker hand.

The dispute centered on whether the payout was governed by the legend printed on the gaming table or the casino's internal rules approved by the Alcohol and Gaming Commission of Ontario.

The Divisional Court dismissed the appeal, finding that the casino created an ambiguity by posting a legend that differed from its approved rules without notifying players that other rules applied.

The court held that the players reasonably relied on the table legend, which formed the contract.

The plaintiff purchaser brought an action for damages against the defendant vendor for breach of an amended Agreement of Purchase and Sale for a 45-acre development property.

The vendor had repudiated the contract, claiming the purchaser failed to pay a $400,000 deposit.

The court found that the amended agreement implicitly removed the deposit requirement, meaning the vendor's repudiation constituted an anticipatory breach.

The court held that the purchaser was ready, willing, and able to close, and was not required to tender given the vendor's clear repudiation.

The court rejected the vendor's argument that the purchaser failed to mitigate, finding the property was unique and no comparable properties were available.

The court awarded the purchaser $11,122,345.27 in damages for lost expected profits, relying on the plaintiff's expert planner.

The defendants brought a motion to discharge a certificate of pending litigation (CPL) obtained by the plaintiff without notice against a commercial property.

The plaintiff, a shareholder in the company that originally purchased the property, alleged the property was fraudulently conveyed to another company.

The court found that while the plaintiff met the threshold test for claiming an interest in land, he failed to make full and fair disclosure of material facts on the ex parte motion, specifically regarding prior litigation and settlement involving the property.

Balancing the equities, including the non-disclosure, the fact that the property was not unique, and that damages would be an adequate remedy, the court ordered the CPL discharged without security.

The plaintiff developer purchased limited partnership units back from the defendant investor.

The plaintiff mistakenly calculated the purchase price based on an assumed original investment of $300,000 instead of the actual $150,000, resulting in a windfall to the defendant.

Upon discovering the error, the plaintiff sought rectification or rescission.

The court found that the transaction proceeded on a common mistake and that the defendant could not rely on the entire agreement clause to take advantage of an obvious error she could have verified.

The court granted the plaintiff equitable relief, allowing the defendant to elect between rescission or rectification (returning the $132,300 overpayment).

The plaintiff vendor sold a commercial office tower to the defendant purchaser.

The vendor claimed $67,457.38 in post-closing adjustments related to additional rent reconciliations.

The purchaser argued these were 'rent receivables' that the vendor had to collect directly from the tenants.

On a motion for summary judgment, the court interpreted the purchase agreement and found the amounts were general adjustments subject to readjustment between the vendor and purchaser, not rent receivables.

Summary judgment was granted in favour of the vendor.

The applicant sought a declaration that a $2 million mortgage registered by the respondent in favour of a related company was void.

The mortgage was registered on the same day a certificate of pending litigation was lifted, while a trial decision regarding a breach of contract claim by the applicant against the respondent was under reserve.

The court found that the mortgage was registered with the intent to defeat or hinder the applicant's ability to collect on a potential judgment, and that the respondent was on the eve of insolvency at the time.

The application was granted and the mortgage was declared void under the Fraudulent Conveyances Act and the Assignments and Preferences Act.