Symon Zucker

The appellants, Rouzbeh Behrouz and Majestic Food Service Inc., appealed an order giving effect to a Letter Rogatory from a U.S. District Court, compelling testimony and document production for a U.S. proceeding alleging violations of Iran-trade embargo laws.

The appellants argued the application judge erred by admitting inadmissible hearsay and failing to properly apply the Friction factors.

The Court of Appeal dismissed the appeal, finding no reversible error.

The court affirmed the application judge's reliance on evidence for determining relevance and necessity, and his proper application of the Friction factors and balancing of Canadian sovereignty with the enforcement request.

The court also agreed that the evidence sought was not otherwise obtainable, deferring to the U.S. court's conclusion and noting that Canadian residents are not compellable witnesses in U.S. proceedings for testimony or document production.

This motion concerned the removal of RSM Canada Limited as the Estate Trustee During Litigation (ETDL) of the Estate of Peter Trezzi and as the court-appointed Manager of two corporations.

The moving party, Albert Trezzi, also sought the appointment of himself and his two sisters as Estate Trustees.

RSM did not oppose its discharge but sought a holdback for professional fees related to a pending passing of accounts.

The court granted the removal of RSM and the appointment of the new Estate Trustees, and ordered a holdback of $250,000 for RSM's fees, finding it equitable and consistent with public policy, despite the beneficiaries' objections to the quantum.

The applicants sought to enforce letters rogatory issued by a Michigan court in a civil criminal-enterprise proceeding.

The application, initially against seven non-parties, was bifurcated to focus on two respondents, Rouzbeh Behrouz and Majestic Food Services, Inc., who later became parties to the Michigan action and opposed the letters rogatory.

The court addressed significant evidentiary challenges, particularly regarding hearsay, clarifying that the Ontario court's role is not to determine the truth of allegations but whether the evidence sought is relevant and necessary for the foreign court.

The court found that the applicants satisfied the prerequisites and criteria for enforcing letters rogatory, including relevance, necessity, and unobtainability of evidence, and that granting the order was not contrary to public policy.

The application was granted.

The applicant mother brought a motion to strike the respondent father's pleadings due to his persistent failure to comply with multiple court orders for financial disclosure.

The court found the father in breach of his disclosure obligations, noting his evasive and selective disclosure and purposely opaque financial situation.

Citing established jurisprudence on the fundamental nature of financial disclosure in family law, the court granted the mother's motion, struck the father's pleadings, granted leave for an uncontested trial, allowed the mother to amend her pleadings to seek a restraining order, and ordered the father to pay $7,500 in costs.

The appellant, ALYU Inc., appealed a lower court decision regarding the interpretation of an Agreement of Purchase and Sale (APS) for commercial units.

ALYU argued that the estimated measurements in the APS should not include a proportional amount of common elements.

The application judge had interpreted the APS to include common elements, dismissing ALYU's application.

The Court of Appeal upheld the application judge's decision, finding no palpable and overriding error in the contractual interpretation.

The court affirmed that the BOMA 1996 Standard, referenced in the APS, requires the unit area to be "grossed-up" to account for common areas, and that the interpretation aligned with the parties' mutual objective intentions.

The appeal was dismissed with costs.

Following the dismissal of the plaintiffs' defamation action as a SLAPP suit under section 137.1 of the Courts of Justice Act, the successful defendants sought costs.

The court applied the presumption under section 137.1(7) that the defendants are entitled to full indemnity costs.

Finding the requested amount reasonable for a complex motion, the court awarded the defendants costs of $63,572.84 on a full indemnity basis.

The plaintiffs brought a motion for settlement and fee approval in a certified class proceeding against the defendant developer regarding abortive purchases of hotel condominium units.

The court approved the $5.75 million settlement as fair and reasonable, noting it was a modest success given the litigation risks.

The court also approved class counsel's fee of $2.2 million, with $1.25 million payable immediately and a $950,000 holdback pending final distribution.

A motion by former, disqualified class counsel to approve a fee-sharing agreement with current class counsel was dismissed, as the former counsel had been disqualified, assumed no ongoing risk, and provided no services under the current retainer.

The landlord, Camcentre Holdings Inc., appealed a lower court decision that found its Notice of Termination of a commercial lease ineffective.

The termination was based on a demolition clause requiring "all requisite permits and authorizations for the commencement of such redevelopment, reconstruction or demolition" by the end of the notice period.

The landlord argued that asbestos abatement, which did not require a permit, constituted the commencement of demolition.

The Court of Appeal upheld the application judge's finding that the Notice of Termination was ineffective because the landlord had not obtained a demolition permit by the specified date, and asbestos abatement was not considered the "commencement of demolition" for the purpose of the lease clause.

The appeal was dismissed.

The parties in a certified class proceeding regarding purchasers of hotel units in the Trump Tower sought a consent order approving the form and content of the proposed Notice of Settlement Approval Hearing.

The court reviewed the proposed notice plan, which included direct mail, email, a dedicated website, and a Facebook page to reach geographically dispersed class members.

Finding the notice and notice plan satisfactory under section 27.1(8) of the Class Proceedings Act, 1992, the court granted the order.

The applicant, a second mortgagee, sought the appointment of a receiver and manager over the respondent's real property due to a matured and defaulted mortgage loan.

The respondent requested a further adjournment to complete refinancing, which was denied due to a non-binding commitment letter and the respondent's lack of diligence in retaining counsel and pursuing refinancing.

The court found the appointment of a receiver to be just and convenient, particularly as the security documents contractually permitted such an appointment upon default.

The court rejected the respondent's claim of bad faith by the applicant.

The appellants, Amber Baptiste and Every Girl Counts LLC, appealed two Superior Court orders: one recognizing a California judgment against them in favour of the respondent, Michael Goguen, and another allowing enforcement of that judgment by seizing funds in Alberta.

The appellants argued the Ontario court lacked jurisdiction over funds outside the province.

The Court of Appeal dismissed the appeal, affirming the Ontario court's in personam jurisdiction over the appellants and CIBC (whose head office is in Ontario), finding it irrelevant that funds were transferred to Alberta.

The court applied principles from *Chevron Corp. v. Yaiguaje*, emphasizing that requiring assets to be present in the jurisdiction at the time of enforcement is not conducive to fairness in a globalized world.

Talon International Inc. brought a motion to remove Mitchell Wine and MSTW Professional Corporation as lawyers of record for the defendant Byung Sook Min, alleging a conflict of interest.

The conflict arose from Mr. Wine's prior representation of 22 other unit purchasers in 19 actions against Talon, which had settled with confidentiality provisions.

Talon argued Mr. Wine possessed confidential settlement information relevant to the current action.

Applying the MacDonald Estate and Celanese Canada Inc. tests, the court found Mr. Wine's new retainer was sufficiently related to his previous representation, creating a rebuttable presumption of confidential information possession that was not rebutted.

The court concluded there was a real risk of prejudice to Talon that could not be overcome by remedies short of disqualification, balancing the integrity of the justice system against the litigant's choice of counsel.

The motion was granted, and Mr. Wine and his firm were removed as counsel.

Following a successful application maintaining the forfeiture of a $100,000 deposit, the applicant sought costs.

The applicant had made a Rule 49 offer to settle for $95,000 plus partial indemnity costs.

Because the applicant obtained a more favourable judgment, the court applied Rule 49.10(1) and awarded partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

Costs were fixed at $19,500 all-inclusive.

The Receiver brought a motion seeking approval of its activities, approval of a sales process for two properties, and an order requiring a tenant to disclose tenancy documentation.

The court declined to grant a generic approval of the Receiver's activities, finding it unnecessary.

The court ordered the tenant to comply with its disclosure obligations, rejecting the tenant's confidentiality objections.

The court approved the proposed sales process and listing agreements, subject to conditions including a time-limited sealing order for appraisals and the circulation of redacted listing proposals to the parties.

The applicant vendor sought an order that the respondent purchaser forfeited her $100,000 deposit after failing to close a real estate transaction.

The purchaser argued for relief from forfeiture, claiming the vendor would receive an unconscionable windfall because he resold the property for $115,000 more than the original purchase price.

The court applied the two-part test for relief from forfeiture and found that the 7% deposit was not disproportionate to the purchase price, nor was the forfeiture unconscionable.

The court ordered the deposit released to the vendor.

The moving parties sought an adjournment of four related applications and two summary judgment motions due to the late filing of a responding record containing an expert report.

The responding party did not oppose the adjournment but argued the expert report should not have been a surprise.

The court granted the adjournment, extended the deadline to set three of the related cases down for trial, and reserved the costs of the appearance to the hearing on the merits.

The Representative Plaintiffs sought substantial or partial indemnity costs following a successful conditional certification motion in a class action.

The court awarded partial indemnity costs of $35,000 for the certification motion and $1,000 for costs submissions.

The court rejected substantial indemnity, finding the defendant's conduct in resisting certification was not egregious and did not warrant a punitive award.

It also found the plaintiff's Offer to Settle ill-advised and an "ill fit" for a certification motion, which is a mandatory procedural step that does not decide the merits of the case.

The plaintiffs brought a motion to revise a conditional Certification Order, approve the Notice of Certification, and determine costs.

The court found it unnecessary and inappropriate to revise the Certification Order, as it was properly taken out and there was no mistake.

The court approved a modified Notice of Certification and directed the parties to make written submissions on costs.

This endorsement records that the parties have settled the matter, with judgment to be entered in favour of the plaintiffs against at least some of the defendants.

Counsel are tasked with finalizing the interest calculation and submitting a draft judgment for approval.

The applicant mother brought an urgent motion seeking various relief, including the appointment of the Office of the Children's Lawyer, an urgent case conference, and orders restraining the respondent father's communication and filming of exchanges.

The court addressed preliminary objections regarding jurisdiction and procedural fairness, finding it had jurisdiction to vary a final order on an interim basis in urgent cases.

The court found a strong prima facie case for a change in parenting arrangements due to high conflict and harm to the children, particularly the eldest.

The court suspended the existing shared parenting schedule, granted the mother primary residency and final decision-making authority on a temporary basis, and ordered the father to pay costs for delayed pleadings.