Stephen Schwartz

The appellants appealed a trial judgment dismissing their action regarding the termination of a lease.

The trial judge found that the appellants failed to pay rent and lacked the financial ability to do so.

On appeal, the appellants argued that the respondents changed their evidence from discovery to trial without providing written notice as required by the Rules of Civil Procedure.

The Court of Appeal dismissed the appeal, finding that the change in evidence regarding the exact date of termination was immaterial to the outcome, as rent was not tendered on either date.

However, the Court reduced the respondents' costs of the appeal due to their failure to provide proper notice.

At a Rule 48.14 status hearing, the court considered whether a civil action should be dismissed for delay.

The plaintiffs were required to show cause why the action should not be dismissed by providing an acceptable explanation for the delay and demonstrating the absence of non‑compensable prejudice to the defendants.

The court accepted that the individual driving the litigation for the corporate plaintiffs had been preoccupied with related criminal proceedings and bankruptcy examinations, which reasonably explained the delay in advancing the action.

The court also found no evidence that witnesses or documents had become unavailable due to the delay.

Balancing the interests of fairness and the policy against litigation delay, the court permitted the action to proceed.

In an oppression application under the Ontario Business Corporations Act, the applicants sought interim relief authorizing a corporation to proceed with litigation against a third party and to amend an earlier order to permit them to sign corporate cheques to fund litigation and reimburse certain expenses.

The respondent opposed the motion and brought a cross‑motion seeking payment or preservation of alleged shareholder allowances and corporate expense reimbursements.

The court held that only limited interim relief was appropriate because the substantive issues in the oppression proceeding could not be determined at this stage.

The court authorized a $65,000 corporate payment to fund independent counsel for the litigation but preserved the existing order requiring dual signatures for other corporate payments.

Other reimbursement claims were deferred to the hearing of the oppression application.

Following dismissal of a civil action alleging negligence and defamation against a credit reporting agency, the court addressed the issue of costs.

The successful defendant sought recovery of trial and preparation costs after a two-and-a-half-day trial involving a self-represented plaintiff.

The court considered the importance of the proceeding, its moderate complexity, the absence of wasted time, and a prior settlement offer proposing dismissal without costs.

The defendant was awarded partial indemnity costs, including counsel fees and disbursements, fixed at $17,301.45 payable within 30 days.

The appellant sued a national credit agency, alleging it published inaccurate credit information regarding her default on a debt owed to a bank.

The motion judge granted summary judgment dismissing the action, finding the report of default was correct as the debt arose under a personal guarantee.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that there was no genuine issue for trial.

The appellants appealed a trial judgment concerning a business sale transaction, a management consultant agreement, and a promissory note.

The Court of Appeal upheld the trial judge's findings that the sale was governed by the June 5, 2000 Agreement and that there was no actionable misrepresentation.

The court affirmed the $8,300 award under the management consultant agreement but varied the judgment to hold only the corporate appellant liable.

The court also varied the interest calculation on a $70,000 promissory note on consent.

The appeal was otherwise dismissed.

The appellants sold a book of business and list of customers to the respondent under a share purchase agreement that included a non-competition agreement.

The trial judge found that the non-competition agreement precluded the appellant from doing business with former customers for four years.

The Court of Appeal upheld the trial judge's decision, finding that despite some ambiguity, the commercial sense of the transaction supported this interpretation.

The appeal was dismissed with costs.

The respondent bank provided credit facilities to a corporate debtor, secured by general security agreements and guaranteed by the appellants.

After the debtor defaulted and went bankrupt, the bank realized on the security without giving the required statutory notice to the appellant guarantors under the Personal Property Security Act (PPSA).

The bank then sued the guarantors for the deficiency.

The Divisional Court upheld the motion judge's decision that the bank's failure to give notice under the PPSA did not preclude it from enforcing the guarantee, as the bank had an independent contractual and common law right to sue for the deficiency.