Symon Zucker

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 appellants appealed a Notice of Proposal by the Registrar, Motor Vehicle Dealers Act, 2002, to revoke their registrations.

The parties reached a settlement and requested a Consent Order disposing of the proceeding without a hearing.

The Licence Appeal Tribunal ordered the Registrar not to carry out the Proposal and directed the registration of the corporate appellants subject to strict conditions, including maintaining books and records, discharging encumbrances within 10 days, prohibiting consignment trades, limiting deposits to $10,000, and providing irrevocable Letters of Credit of $30,000 each to the Motor Vehicle Dealers Compensation Fund.

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.

The Registrar of the Motor Vehicle Dealers Act, 2002 issued a Notice of Proposal to revoke the registrations of the appellants as a motor vehicle dealer and salesperson.

The parties reached a resolution and executed Minutes of Settlement.

The Licence Appeal Tribunal issued a Consent Order continuing the appellants' registrations subject to the terms and conditions set out in the Minutes of Settlement, and the appeal was withdrawn.

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 Registrar issued a Notice of Proposal to revoke the registrations of Platinum Cars Inc. as a motor vehicle dealer and Shaun Jalili as a salesperson under the Motor Vehicle Dealers Act, 2002.

The appellants appealed the proposal to the Licence Appeal Tribunal.

During the hearing, the parties reached an agreement to resolve all issues.

The Tribunal issued a consent order directing that the Registrar will not carry out the revocation, and the registrations will be subject to conditions agreed upon in the Minutes of Settlement.

The appellants, a motor vehicle dealer and its principal, brought a motion to stay the Tribunal's order revoking their registrations pending an appeal to the Divisional Court.

The Tribunal applied the RJR-MacDonald test and found that the appeal raised a serious issue, the appellants would suffer irreparable harm without a stay as the dealership was their sole source of income, and the balance of convenience favoured a stay provided conditions were imposed to protect the public.

The stay was granted subject to conditions including posting security and maintaining specific transaction records.

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.

In a professional discipline hearing, the member admitted multiple acts of misconduct arising from opioid prescribing to several patients over a prolonged period.

The panel found the admissions and agreed facts established failures to document diagnosis and justification, excessive quantities and frequency of opioid prescriptions, inadequate charting, and a lack of professional judgment, particularly concerning one patient.

The panel accepted a joint submission on penalty, emphasizing public protection, general and specific deterrence, and remediation.

The member received a four-month suspension, a permanent restriction on prescribing narcotic and controlled drugs, mandatory courses, practice monitoring, and costs.

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.