Varoujan C. Arman

The appellant appealed a motion judge's order upholding a registrar's dismissal of his action for delay.

The appellant argued the motion judge erred in assessing the explanation for the delay, inadvertence, and prejudice, and failed to prioritize determining claims on their merits.

The Court of Appeal dismissed the appeal, finding the motion judge applied the correct legal principles and made no palpable and overriding factual errors.

The motion judge properly found the appellant failed to adequately explain the delay, failed to show the delay was due to inadvertence, and failed to rebut the presumption of prejudice, noting actual prejudice due to the loss of key evidence.

The applicant purchased the assets of a media company from secured debenture holders pursuant to an Assets Purchase Agreement that expressly excluded employment contracts and related liabilities.

When the predecessor company's union brought an application before the OLRB under s. 69 of the Ontario Labour Relations Act, the applicant settled for unpaid wages and vacation pay owed to employees prior to the closing date and sought indemnification under the APA.

The court held that the settlement payments fell within the excluded liabilities under the APA and that the applicant was entitled to full indemnification of $58,000, comprising the settlement amount and legal fees.

The court further found that the applicant's public announcement of its acquisition did not constitute a breach of the APA's confidentiality clause and would not, in any event, entitle the respondents to set off the indemnification owed.

The defendants (other than Johnson Controls) brought a motion to stay the action based on alleged failure by the plaintiff and Johnson Controls to immediately disclose a settlement agreement (the Pro Rata Agreement) that they claimed changed the litigation landscape.

The court dismissed the motion, finding that timely disclosure was made in the context of this particular case and that the agreement did not change the litigation landscape because the action had been effectively stayed and the dispute was being pursued in arbitration.

The court also addressed the application of new Rule 49.14 regarding partial settlement disclosure and fashioned appropriate remedies.

The respondents, a professional engineer and his firm, faced discipline for professional misconduct related to the design and review of a residential deck project.

They admitted to signing and sealing sketches with errors, failing to conduct a site visit before issuing a general review report, and failing to update the report.

The Discipline Committee accepted an agreed statement of facts and a joint submission on penalty, finding the respondents guilty of negligence and unprofessional conduct.

The penalty included a reprimand, a 10-day suspension, a requirement to pass the National Professional Practice Examination, and publication of the decision.

This motion concerned a property dispute where the applicant sought to convert an application into an action.

The court granted the motion, finding that the case involved material facts in dispute, complex issues requiring expert evidence, credibility assessments, and a need for pleadings and discoveries.

The conversion was deemed in the interests of justice, providing the respondent with the opportunity to pursue summary judgment and ensuring a more suitable procedural framework for the complex issues involved.

The court also indicated it would case manage the proceeding with strict deadlines.

The defendant landlord sought summary judgment to dismiss the plaintiff tenant's claim and for judgment on its counterclaim for withheld rent, stemming from a dispute over the calculation of realty taxes under a commercial lease.

The tenant sought a declaration regarding the proper calculation method and an accounting for overcharges.

The court dismissed the landlord's motion for summary judgment and its counterclaim for the specific amount.

However, it granted the tenant's request for a declaration that the landlord must calculate realty taxes according to the lease's terms, applying a six-year limitation period for any past overcharges based on the Real Property Limitations Act.

Samine LLC, the successful respondent in a prior appeal, sought costs on a partial indemnity basis.

Samine requested $7,000, while the appellants, Digital Shovel Holdings Inc. and Scot Johnson (DSHI), proposed $5,192.92.

The court found Samine's requested amount reasonable, proportionate, and within the unsuccessful party's reasonable expectation, especially when compared to the time spent by DSHI's own counsel on the appeal.

The court awarded Samine LLC the full amount of $7,000 in costs.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellant, Assignment Credit Corp., was ordered to pay costs to several respondents (MCAP Financial Corporation, Dorr Capital Corporation, and Cherniak Law Professional Corporation).

The court rejected the appellant's argument that prior costs agreements should stand, as they were made before the appellant's non-disclosure of a material fact (that the Mesbur Judgment was obtained on consent) was revealed.

This non-disclosure, which impacted the second issue of the appeal, justified an elevated costs award on a solicitor-client basis for the affected respondents.

The 167 respondents were denied costs due to their own failure to disclose the consent judgment and their underlying financial obligations.

The appellants appealed an Associate Judge's decision that allowed the respondent to amend its statement of claim to include a new cause of action for fraudulent misrepresentation.

The appellants argued the new claim was statute-barred.

The Associate Judge had found a discoverability issue that warranted leaving the limitation period determination to trial or summary judgment.

The appeal court dismissed the appeal, affirming that where a factual dispute exists regarding discoverability, amendments to pleadings should generally be allowed, and the limitation defence can be pleaded and determined at a later stage.

The court found no palpable and overriding error in the Associate Judge's decision.

This appeal concerned the priority of various creditors in a garnishment hearing involving payments owed by the City of St. Catharines and Region of Niagara to 1671379 Ontario Inc. under a Brownfield Tax Increment Based Incentive Grant Program Agreement (BTIG).

The primary dispute was between MCAP Financial Corporation, holding a perfected General Security Agreement (GSA), and Assignment Credit Corp. (ACC), asserting priority based on an assigned consent judgment (Mesbur Judgment).

The Court of Appeal affirmed the motion judge's finding that MCAP's perfected GSA had priority for its shortfall judgment over ACC's claim, finding no inconsistency in MCAP's position.

However, the court remitted the issue of priorities among ACC and other unsecured judgment creditors to the motion judge, as it was revealed post-hearing that the Mesbur Judgment was a consent judgment, a fact not disclosed to the motion judge or other creditors, raising new legal arguments regarding the Personal Property Security Act and the Assignments and Preferences Act.

Following the dismissal of the moving parties' motion for a certificate of pending litigation, both parties sought costs.

The moving parties argued they were substantially successful because the dismissal was conditional on an undertaking offered by the responding parties.

The court rejected this argument, noting the moving parties chose to proceed with the motion after the undertaking was offered.

The court awarded costs to the successful responding parties on a partial indemnity scale in the amount of $86,739.59.

The plaintiffs moved for leave to issue a certificate of pending litigation against a commercial property in Barrie, alleging an agreement to jointly acquire the property with the defendants.

The court found a triable issue regarding the plaintiffs' claim to an interest in the land, including whether one defendant acted as an agent for an undisclosed principal.

However, balancing the equities, the court dismissed the motion conditional upon the corporate owner providing an undertaking not to sell the property except to a bona fide purchaser, to pay 50% of net proceeds into court if sold, and to provide 30 days' notice of any refinancing or sale.

Various creditors of 1671379 Ontario Inc. and Manuel Elkind brought motions to determine priority status for garnishment payments owed by the City of St. Catharines and Region of Niagara under a Brownfield Tax Increment Based Incentive Grant Program Agreement (BTIG).

The primary dispute was between MCAP Financial Corporation, which held a registered and perfected security interest under the Personal Property Security Act (PPSA), and Assignment Credit Corp. (ACC), which claimed priority based on an assignment of a prior judgment.

The court found that MCAP's security interest, including the proceeds of the BTIG, maintained its priority status despite being reduced to a shortfall judgment.

The court dismissed ACC's claim for priority, finding that its assigned interest was subject to MCAP's prior perfected security and that ACC's claim should be limited to $400,000 as per a "Side Deal" in a previous endorsement.

The appellant appealed a summary judgment, arguing the motion judge erred in finding the respondent met her duty to mitigate following his breach of a contract of purchase and sale, and that the motion judge's reasons were inadequate.

The Court of Appeal dismissed the appeal, finding the motion judge's reasons functionally adequate and her determination on mitigation reasonable.

The respondent was not obligated to grant further extensions or engage with the appellant's subsequent offers after his repeated failure to close the transaction.

This endorsement addresses the costs of a dismissed motion where the Plaintiff sought various interlocutory relief, including restoration of access and possession to leased premises.

The Defendant, who successfully opposed the motion, sought substantial indemnity costs, or partial indemnity in the alternative.

The Plaintiff argued costs should be deferred or significantly reduced, and that its principal, Floora Davachi, should not be personally liable.

The court awarded the Defendant partial indemnity costs, finding no basis for substantial indemnity, and held the Plaintiff and its principal personally liable for costs based on a prior agreement between counsel.

Following the dismissal of the plaintiffs' action as statute-barred on a summary judgment motion, the successful defendant sought costs on a substantial indemnity basis, relying on a Rule 49 offer to settle for a dismissal without costs.

The court found it was reasonable for the plaintiffs to refuse the tactical offer, as their discoverability arguments were reasonably arguable.

The court awarded the defendant partial indemnity costs fixed at $12,500.

The plaintiff tenant sought a mandatory interlocutory injunction to restore its access to a commercial leased premises after the defendant landlord changed the locks and terminated the lease for rent arrears and an intention to sell the property.

The plaintiff argued the termination was invalid because the 2021 lease was a new lease, not a renewal, and thus the landlord could not exercise a termination right tied to the renewal period.

The court dismissed the motion, finding the plaintiff failed to establish a strong prima facie case that the 2021 lease was a new lease rather than a renewal, and noted the plaintiff failed to provide evidence of approval for COVID-19 rent subsidies to trigger statutory protections.

The plaintiffs were injured in a dog attack in a condominium in 2012.

They sued the dog owner, condominium corporation, and property manager in 2013.

In 2019, they commenced a new action against the security company that provided concierge services.

The security company brought a motion for summary judgment, arguing the claim was statute-barred under the Limitations Act, 2002.

The court granted the motion, finding that the plaintiffs knew or ought to have known they had an occupier's liability claim against the security company in 2012, or at the latest by 2016, well before the two-year limitation period expired.

The action against the security company was dismissed.

The Applicants (Green Growth Brands Inc. et al.) sought an Amended and Restated Initial Order and approval of a Sale and Investment Solicitation Process (SISP) and a Stalking Horse Agreement under the Companies’ Creditors Arrangement Act (CCAA).

Mr. Michael D. Horvitz, an investor, opposed the motion and brought a cross-motion seeking to set aside the Initial Order, adjourn the comeback motion for discovery, and direct the Monitor to investigate certain transactions.

The court dismissed Mr. Horvitz's cross-motion, finding his complaints largely constituted inter-creditor disputes outside the scope of CCAA proceedings.

The court approved the Applicants' requested orders, finding the SISP and Stalking Horse Agreement reasonable and compliant with CCAA criteria, despite Mr. Horvitz's objections regarding fairness, break fees, and the treatment of the GAOC Note.

The defendant, Cozy Corner Bedding Inc., appealed a summary judgment that dismissed its counterclaim for equitable set-off and granted judgment to the plaintiff, 3113736 Canada Ltd. (Valle Foam), for unpaid invoices.

Cozy Corner alleged overcharging due to a price-fixing scheme.

The motion judge had ruled the counterclaim was barred by a class action release and lacked sufficient evidence.

The Court of Appeal allowed the appeal, finding that an exception in the class action release preserved the right to pursue claims in insolvency proceedings, including equitable set-off under s. 21 of the CCAA.

The Court also found the motion judge erred in concluding there was insufficient evidence of overcharging, noting Valle Foam's own admissions regarding overcharge percentages.

The summary judgment was set aside, and the matter was directed to trial.