Varoujan C. Arman

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.

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.

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.

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.

The plaintiff, Hoodex Industries Limited, brought a motion for leave to amend its amended statement of claim and for an order to have its action tried together with another related action (CV-18-605074).

The motion was largely on consent, except for the defendants Innova Toronto Inc. and Tahsin Bondokji (the "Innova defendants") who opposed both requests.

The court granted leave to amend the statement of claim, finding that the proposed amendments disclosed reasonable causes of action against the Innova defendants, including misappropriation of confidential information, intentional interference with economic relations, conversion, and conspiracy.

The court also ordered the two actions to be tried together, citing common questions of fact, significant overlap of evidence, and the risk of inconsistent findings if tried separately, in line with the principles of avoiding multiplicity of proceedings and ensuring expeditious and least expensive determination of civil proceedings.

Costs were awarded to Hoodex.

An appeal from a summary judgment decision concerning the interpretation of a commercial loan contained in two letter agreements.

The appellants argued that the summary judgment judge erred in law by failing to give full effect to all terms of the agreements and to read them harmoniously.

The Court of Appeal found the judge's interpretation, particularly as set out in paragraphs 67-72 of his reasons, to be reasonable, informed by the factual matrix, and commercially sound.

The appeal was dismissed with costs awarded to the respondent.

The plaintiff, 3113736 Canada Ltd. (formerly Valle Foam Industries (1995) Inc.), sought summary judgment for unpaid invoices totaling $184,319.34 and dismissal of the defendant's (Cozy Corner Bedding Inc.) counterclaim.

The defendant's counterclaim alleged overpayment due to the plaintiff's admitted price-fixing during an earlier period and sought $410,000.

The court found no genuine issue for trial regarding the plaintiff's claim for unpaid invoices.

The court also found that the defendant's counterclaim was released and deemed discontinued by a national class action settlement, which the defendant had not opted out of, despite claiming lack of actual notice.

The court emphasized that adequate notice, not actual notice, is required for class action settlements to bind class members.

Domfoam International Inc., an applicant in CCAA proceedings, sought leave under Rule 39.02(2) of the Rules of Civil Procedure to examine the president (Terry Pomerantz) and an employee (John Howard) of Domfoam Inc. (the Purchaser) as witnesses in relation to the Purchaser's motion to set aside a distribution order.

The core dispute concerned whether proceeds from an anti-trust class action (Dow Proceeds) were conveyed to the Purchaser in a prior transaction.

The court applied a four-part test for granting leave, finding that the examination of Pomerantz was relevant and responsive to matters raised during cross-examination of the Purchaser's lawyer, and that Domfoam provided a reasonable explanation for the delay.

However, leave to examine Howard was denied as the relevant issues concerning him were known prior to the initial cross-examination, and proportionality weighed against it.

The appellant, an egg producer, appealed a motion judge's decision dismissing its motion to belatedly comply with a 2013 judgment order requiring payment into court.

The appellant had failed to pay the judgment funds into court, failed to bring a motion to add respondents as defendants to a related action, and took no further steps to advance its counterclaim for five years.

When the appellant finally returned to court in 2018, it sought permission to proceed with the counterclaim and amend it.

The motion judge applied the test from Rule 48 (dismissal for delay), placing the onus on the appellant to establish an acceptable explanation for the delay and that respondents would suffer no non-compensable prejudice.

The motion judge found the appellant's explanation inadequate and concluded actual prejudice existed.

The Court of Appeal upheld the dismissal, finding no error in the motion judge's legal test or factual findings.

The appellant appealed a summary judgment decision regarding its failure to remove goods from premises as required by an agreement of purchase and sale.

The Court of Appeal upheld the motion judge's findings that the appellant abandoned the goods by refusing multiple opportunities to remove them, that damages were properly calculated based on lost rent, that the respondent did not fail to mitigate damages, and that the respondent was entitled to forfeit a $100,000 holdback due to the breach.

The court rejected arguments that the Commercial Tenancies Act procedures should apply by analogy and found the respondent acted commercially responsibly in selling the goods at public auction.

This supplementary costs endorsement addresses the quantum of costs for earlier supplementary submissions.

The court clarified its previous position, acknowledging the defendants' submissions, though ultimately disagreeing with their objection.

The plaintiff was awarded modest costs of $1,000, less than sought but more than proposed by the defendants, reflecting the effort expended and the plaintiff's successful position on the issue.

The court issued a second supplementary endorsement addressing the defendants' objections to paragraph 11 of a draft order.

The defendants, primarily Robert Symons, objected to the requirement to provide detailed financial statements and transaction records for Gerald Gordon Symons dating back to 2000, citing lack of records, formal authority as executor, and relevance.

The court dismissed these objections, affirming that the order reflected its original endorsement and that Robert Symons was expected to use best efforts to acquire the information.