Warren S. Rapoport

The applicant sought relief in an appeal before the Court of Appeal for Ontario.

The court reviewed the record and applied the governing legal and procedural standards, including deference to factual and discretionary determinations where required.

The matter concluded with the following disposition: Appeal dismissed.

The applicant sought payment of a promissory note via an application under the Rules of Civil Procedure.

The respondent argued that the promissory note was part of a larger asset purchase agreement (APA) and subject to adjustments, particularly concerning disputed accounts receivable, necessitating a trial.

The respondent moved to convert the application into an action and consolidate it with an existing related action.

The court found that the promissory note, when interpreted within the context of the entire APA, was subject to potential adjustments.

Given the material factual disputes and credibility issues surrounding the accounts receivable, the court determined that a trial was required.

The application was ordered to be converted into an action and heard concurrently with or immediately following the existing action.

The appellant, Cipponeri Construction Services Inc. (CCSI), appealed a motion judge's order dismissing its 2020 action against Westin Homes Ltd. and Michael Orsi as an abuse of process.

The 2020 action was commenced to preserve a limitation period for a claim against Westin that had been ineffectively asserted in a prior 2018 counterclaim.

The Court of Appeal found the motion judge erred in dismissing the 2020 action against Westin as an abuse of process, as it was initiated to preserve a limitation period.

The court varied the order, staying the 2020 action against Westin, requiring CCSI to promptly move to amend the 2018 counterclaim to add itself as a plaintiff, and stipulating that no limitation period defense prior to March 16, 2020, would be asserted.

The dismissal against Orsi personally was upheld.

The plaintiff brought a motion to inspect documents over which the defendant claimed solicitor-client and litigation privilege in an action for property damage allegedly caused by negligent road construction.

The court reviewed the disputed documents and found that most were protected by privilege, as litigation was contemplated early in the parties' negotiations.

The court ordered the production of a few documents that did not meet the test for privilege.

The court also dismissed the plaintiff's argument that the defendant had impliedly waived privilege in its Statement of Defence, but granted the plaintiff's motion to strike a paragraph of the Statement of Defence with leave to amend.

The defendants, Cushman & Wakefield Ltd. and Danny Ip, brought a motion for summary judgment to dismiss claims of negligent misrepresentation and breach of contract by Foremost Mortgage Holding Corporation (FMHC).

FMHC, a wholly-owned subsidiary of Foremost Financial Corp. (FFC), relied on an appraisal report prepared by the defendants for mortgage financing.

The appraisal and a subsequent reliance letter explicitly authorized only FFC (and initially CTC Bank of Canada) to rely on it, with clear limiting language.

The court found that FFC and FMHC are separate legal entities and that the defendants did not owe a duty of care to FMHC, as FMHC was not an authorized party to rely on the appraisal.

Consequently, FMHC's claims for breach of contract and negligent misrepresentation were dismissed.

Following the dismissal of an oppression remedy application, the respondents sought substantial indemnity costs.

They argued that the application was the applicant's second unwarranted one on similar facts and that a comprehensive settlement offer, made after judicial mediation, was rejected.

The court declined to award substantial indemnity costs for the entire proceeding but found it fair and reasonable to award substantial indemnity costs from April 25, 2019, the date of the settlement offer.

The offer was deemed more favourable to the applicant than the outcome of the contested application, and no formal counter-offer was made.

The respondents were awarded fixed costs of $66,148.84 inclusive.

The applicant, a one-third shareholder, sought an oppression remedy under the OBCA to compel the sale of the corporation's sole asset (a property) or the purchase of his shares, due to a disagreement with the majority shareholders (the respondents) who also owned the tenant restaurant.

The court dismissed the application, finding no oppressive or unfair conduct, and that the respondents' business judgment was within a reasonable range.

The court emphasized the absence of a unanimous shareholder agreement and that mere disagreement does not amount to oppression or warrant winding up.

The appellants appealed a judgment of the Superior Court of Justice regarding a contract dispute with the respondent.

The appellants raised two main issues: first, whether the "common employer" issue constituted a different cause of action triggering a Limitations Act defence; and second, whether the trial judge erred in finding that Mr. Nourse had authority to bind the appellants to the contract with the respondent.

The Court of Appeal found that while the common employer issue raised pleading concerns, the trial judge's finding that the appellant had notice of the claim at least six weeks before trial meant any pleading deficiencies caused no prejudice.

The Court also deferred to the trial judge's factual finding regarding Mr. Nourse's authority to bind the appellants, which was supported by the evidence.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed from an order of the Superior Court dismissing his preliminary motion to challenge the authenticity of a joint venture agreement through forensic document examination.

The Court of Appeal found that the motion judge had mischaracterized the nature of the preliminary motion and made material factual errors in his analysis.

The court allowed the appeal, set aside portions of the October order, and reinstated the April order pending the appellant's opportunity to bring a motion in Superior Court regarding the document's authenticity.

The court also preserved the respondent's right to pursue relief if the appellant failed to bring such motion within 30 days.

The respondent retained its costs award from the application judge, and no costs were awarded on the appeal.

This is a costs decision on appeal from a Superior Court judgment.

The appellant appealed the decision of Justice James F. Diamond dated August 22, 2016, and the associated costs order dated September 27, 2016.

The Court of Appeal reviewed the costs submissions of both parties and determined that the respondent was entitled to costs of the appeal on a partial indemnity basis, fixed at $80,000 inclusive of disbursements and HST.

The court found no basis for awarding costs on a substantial indemnity basis.

The appellant appealed a trial judgment dismissing his claim for declaratory relief related to an insurance policy and sought leave to appeal a substantial indemnity costs award of $1,250,000.

The trial judge found that the policy contained a common mistake in the paid-up values table and ordered rectification.

The appellant argued that rectification was unavailable as a remedy and that any rectification claim was statute-barred under the Limitations Act.

The Court of Appeal upheld the trial judgment, finding that rectification was an appropriate remedy for the common mistake and that the claim was not statute-barred because the injury, loss, or damage only occurred when the appellant sought to resile from the parties' common understanding.

The court also upheld the substantial indemnity costs award, finding the appellant's conduct worthy of judicial sanction.

The plaintiff initiated an action seeking a declaration that the paid-up values in his life insurance policy, which significantly exceeded the face value, were correct and reflected an agreed-upon inflation protection.

The defendant, Manulife, contended that the policy's non-forfeiture table contained a clerical error, mistakenly stating "per $1,000" instead of "per $5,000" of face amount, and sought rectification.

The court found that the plaintiff never requested inflation protection, and the error in the policy was mutual and obvious.

The plaintiff's action was dismissed, and the court ordered the policy to be rectified to reflect the true agreement, changing "per $1,000" to "per $5,000" in the non-forfeiture table.

The defendant brought a motion to preclude the plaintiff's expert witness, W. Steve Prince, from testifying regarding the commercial viability of an insurance policy.

The defendant argued Prince's opinion evidence was unnecessary and irrelevant, particularly concerning policy interpretation and profitability assumptions.

The court dismissed the motion, finding Prince's evidence potentially relevant to counter the defendant's assertion that such a policy was "absurd" in 1982, and also relevant if the legal remedy of rectification were required to assess the potential unconscionability of allowing the policy to remain in place.

In an estate dispute, the respondent sought removal of the applicant as estate trustee, while the applicant brought a cross‑motion seeking the respondent’s removal.

The dispute arose from significant conflict between the deceased’s spouse and daughter over the administration of the estate and the disposition of the estate’s principal asset, shares in a nail salon business.

The court reviewed the governing principles for removal of trustees, emphasizing that clear evidence of necessity and risk to the proper administration of the estate is required, and that hostility alone is insufficient.

Given the contradictory affidavit evidence and the absence of clear proof that the estate’s administration was endangered, the court declined to remove either trustee.

Directions were ordered for the sale of the estate’s business interests and for related claims to proceed to trial.

The applicant sought declarations that a life insurance policy issued in 1982 should be enforced according to its original terms, including paid‑up value calculations appearing on the face of the policy.

The respondent insurer alleged that the paid‑up values in the policy were inserted in error and sought rectification to reduce them by a factor of five.

The record contained conflicting affidavit evidence and competing expert opinions regarding the intended structure of the policy and the calculation of paid‑up values.

The court held that the disputes involved material factual conflicts, credibility assessments, and complex issues relating to rectification and limitation periods.

As a result, the matter could not properly be resolved on an application record and required a trial.