Susanne Michele Kathleen Balpataky

The Plaintiff brought a motion under Rule 39.03 to examine witnesses for the Defendants' pending motion to strike his pleadings.

The Defendants argued that motions to strike, particularly under Rule 21.01(1)(b), do not permit the admission of evidence.

The court dismissed the Plaintiff's motion, affirming that evidence is inadmissible on motions to strike pleadings and that the Plaintiff's attempt was an improper fishing expedition to convert the motion into a summary judgment hearing.

This motion was brought by Mappro Realty Inc. seeking to correct a misnomer in the defendant's name from Mizrahi Developments Inc. to Mizrahi Development Group (The One) Inc. While the substantive correction was agreed upon, the court addressed the issue of costs.

The court found that Mizrahi Developments Inc. (MDI) should pay Mappro's costs because MDI knew of the misnomer early on but engaged in conduct, including attempting to preserve a groundless limitation defence, that unnecessarily prolonged the motion and caused Mappro to incur needless costs.

The court awarded Mappro substantial indemnity costs, emphasizing that a misnomer order is an application of law, not an indulgence, and that MDI's conduct warranted sanction.

This is an application to pass accounts by an Estate Trustee During Litigation (ETDL) for the Estate of Georgia Manos.

The beneficiary, James Manos, filed objections to the ETDL's compensation and legal fees, alleging mismanagement and excessive costs due to the ETDL's unresponsiveness.

Other beneficiaries did not object to the ETDL's compensation or fees but sought to have James pay costs incurred due to his litigation.

The court dismissed James's objections, finding that the ETDL acted with appropriate care, skill, and responsibility in administering the estate and liquidating foreign assets despite James's obstructive and disproportionate litigation tactics.

The court granted the ETDL's requested compensation and legal fees, ordering James to pay 60% of the legal costs from his share of the Estate on a partial indemnity scale, with the balance payable from the Estate.

The Toronto-Dominion Bank (TD) brought a motion for summary judgment against Pomer & Boccia Professional Corporation (P&B), David Michael Pomer, and Douglas LaFramboise for breach of a solicitor's undertaking.

The undertaking, executed by LaFramboise on behalf of P&B personally and as agent for their clients, required P&B to pay $150,000 to TD's lawyers by a specific date, independent of the clients' refinancing efforts in a fraudulent conveyance action (FCA).

The defendants argued that TD's claim was barred by res judicata, issue estoppel, abuse of process, and principal-agent obligations due to a prior judgment obtained against their clients in the FCA.

The court found the undertaking clear and unequivocal, binding P&B personally, and held that the current action for breach of undertaking was distinct from the FCA.

The doctrines of res judicata and issue estoppel did not apply as the issues and parties were different.

The motion for summary judgment was granted in favour of TD Bank.

Douglas LaFramboise sought leave to amend his Statement of Defence to Cross-Claim and add a counterclaim for defamation against The Toronto-Dominion Bank.

The Bank consented to the amendment of the Statement of Defence but opposed the counterclaim, arguing it lacked legal foundation and was protected by absolute privilege.

The court, applying Rule 26.01, found that statements made in pleadings are protected by absolute privilege, meaning the proposed counterclaim for defamation had no reasonable chance of success.

The motion to amend the Statement of Defence to Cross-Claim was allowed on consent, but the motion to add the counterclaim was dismissed.

Judgment creditors applied for a bankruptcy order against a debtor who owed over $350,000 under a judgment arising from a failed real estate transaction.

The debtor asserted he had no income or assets and that his wife paid all household and credit obligations.

The court held that a debtor ceases to meet liabilities when he personally stops paying them, even if a third party voluntarily covers the payments.

Evidence also raised suspicious circumstances regarding asset transfers, including the transfer of the debtor’s interest in the matrimonial home after judgment and dealings with luxury vehicles.

The court found the debtor had ceased meeting liabilities generally and that special circumstances justified bankruptcy under the Bankruptcy and Insolvency Act.

A contractor sought a declaration enforcing a construction lien for unpaid excavation and waterproofing work performed on a residential property.

The homeowners counterclaimed, alleging the work failed to stop existing basement leaks and caused additional water infiltration due to an improperly functioning drainage system.

After reviewing expert evidence, photographs, and testimony regarding the installation of weeping tiles, grading, and waterproofing, the court found the contractor failed to fulfill its contractual obligation to stop the leaks.

The evidence established that water infiltration continued and a new leak developed after the work, requiring a complete replacement of the waterproofing and drainage system by another contractor.

The court dismissed the lien claim and awarded damages representing the reasonable cost of the replacement work, less the original contract amount and unrelated improvements.