Yonatan Lipetz

The plaintiff mortgagee brought a motion for summary judgment following the defendant's default on a second mortgage.

The defendant did not dispute the principal amount owed but argued that the increase in the interest rate from 8.5% to 17% upon maturity was unconscionable under the Unconscionable Transactions Relief Act.

The court found the transaction was not unconscionable, noting the parties freely contracted and the rate was not excessive for a second mortgage.

The court awarded the principal, interest at 17%, missed payment fees, and an order for possession, but required a further motion for a writ of possession to ensure tenants were properly served.

The plaintiffs, Gary and Jennifer McKenzie, brought two claims: one for breach of contract against Fabco Holdings Inc. and Jaymor Specialty Housing General Partner Inc. (Fabco/Jaymor) arising from an aborted real estate purchase agreement, and another for slander of title/injurious falsehood against Gerald Anthony, a neighbour, regarding a disputed property boundary.

The court found that Fabco/Jaymor breached the purchase agreement, not due to a legitimate title issue, but because the property was unsuitable for their development plans.

Fabco had assigned its obligations to Jaymor, and the court held Jaymor solely responsible for the breach, releasing Fabco from liability per the contract's assignment clause.

The court awarded the plaintiffs substantial damages against Jaymor for loss of bargain and associated costs.

Regarding the title claim, the court found Anthony liable for slander of title/injurious falsehood for registering a caution and application on title without bona fide grounds, which delayed the subsequent sale of the property.

However, Anthony was not held liable for damages related to the initial aborted sale, as that was attributed to Fabco/Jaymor's independent reasons.

The court awarded damages against Anthony for losses incurred due to the delay in the second property sale.

The defendants' counterclaim was dismissed, and the plaintiffs were found to have reasonably mitigated their damages.

The appellant appealed a summary judgment granted against them on a personal guarantee.

The appellant argued the motion judge erred by not explicitly considering the three inquiries proposed in Malik v. Attia for partial summary judgment.

The Court of Appeal dismissed the appeal, finding that the motion judge implicitly considered all relevant factors, and that partial summary judgment was appropriate as it resulted in cost savings, resolved a significant discrete issue, and avoided inconsistent findings.

The moving party brought a motion for leave to appeal the order of Perfetto J. dated July 18, 2023.

The Divisional Court dismissed the motion for leave to appeal and ordered that there be no costs for or against any party.

The appellant appealed a motion judge's order annulling the bankruptcy of a company (1947755 Ontario Ltd.) on two grounds: insolvency and abuse of process.

The appellant sought to introduce fresh evidence regarding the company's solvency.

The Court of Appeal dismissed the appeal, finding that the motion judge's conclusion of abuse of process was supported by the evidence and was sufficient to justify the annulment, rendering the fresh evidence on solvency irrelevant to the outcome.

The plaintiff lender brought a motion for summary judgment seeking over $1.3 million in liquidated damages for the defendants' alleged breach of a commercial mortgage commitment letter.

The defendants failed to close the loan after being unable to acquire one of the properties intended as security.

The court dismissed the motion for summary judgment, finding genuine issues requiring a trial.

Specifically, the court found insufficient evidence to determine whether the plaintiff was actually ready, willing, and able to fund the loan on the closing date, and whether the substantial commitment fees and accelerated interest claimed constituted an unenforceable penalty under section 8 of the Interest Act.

The moving party (guarantor) sought an extension of time to appeal a partial summary judgment of $1.8 million.

The motion judge's endorsement was not received by the parties for over 18 months.

The court granted a brief extension, finding that the guarantor demonstrated an intention to appeal within 30 days of receiving the endorsement, the delay was relatively brief and partly attributable to the court's delay and the lender's conduct, and despite remote chances of success on appeal, the interests of justice favored granting the extension given the unusual circumstances of the endorsement's late release.

The plaintiffs brought a motion for summary judgment against the defendant for $538,000 representing the principal of various loans.

Prior to the hearing, the defendant consented to partial summary judgment for $300,000.

The court considered whether summary judgment should be granted for the remaining $238,000.

Finding that the outcome would turn heavily on assessments of credibility due to contradictions in the defendant's evidence and the nature of the documentary evidence, the court concluded it could not make the necessary findings of fact.

The motion for summary judgment for the remaining $238,000 was dismissed and ordered to proceed to trial.

The appellants appealed a summary judgment granted against them for defaulting on a lease agreement for laboratory equipment.

The respondent had obtained an order to recover equipment and sought damages and delivery of remaining items.

The appellants argued a settlement agreement existed, which the motion judge rejected.

The Court of Appeal upheld the motion judge's findings, dismissing arguments regarding a settlement, credibility issues, and damages assessment, finding no palpable and overriding error.

The appeal was dismissed with costs.

The plaintiff law firm moved for leave nunc pro tunc to commence an action for unpaid fees after the defendant clients had already initiated an assessment of the accounts under the Solicitors Act.

The plaintiff argued the case was not ripe for assessment because the clients disputed the retainer.

The court denied leave, emphasizing the legislative policy that fee disputes should be diverted to the speedy and inexpensive assessment process, and held that pandemic-related delays in the Assessment Office do not justify bypassing this statutory framework.

The applicant tenant brought an application for the interpretation of a commercial lease to determine responsibility for property taxes, utility arrears, renovation expenses, and management fees.

The court found that the lease unambiguously made the landlord responsible for property taxes.

The court also held the landlord responsible for utility arrears incurred prior to the lease that were necessary to maintain service.

However, the tenant was found responsible for renovation costs, as well as the landlord's reasonable legal and management fees.

Following a guardianship trial where success was divided, the applicants sought full indemnity costs of the proceeding and costs of three interlocutory motions.

The court found that while the applicants were more successful than the respondents, their insistence on unworkable care plans and the parties' mutual animosity unduly lengthened the proceeding.

The court denied enhanced costs and costs of the interlocutory motions, awarding the applicants partial indemnity costs fixed at $56,760.72.

An appeal concerning the appointment of guardians for a 90-year-old mother's property and personal care.

David and Edward Carey, who were originally applicants, withdrew their support for the applicants' position and sought to be appointed as appellants.

The motion judge had previously removed them as applicants without making them respondents.

The appellate court dismissed the appeal, finding no error in the motion judge's decision to appoint guardians in the best interests of the mother.

The court ordered David and Edward Carey to pay costs of $5,000 to the respondents.

The appellants sought an adjournment of their appeal, which was granted with the respondent's consent.

The court set a peremptory hearing date of November 28, 2019, with a 45-minute time allocation (30 minutes for appellants, 15 minutes for respondent).

The appellants were required to perfect the appeal within 21 days, and the respondent was to file their factum within 10 days of receiving the perfected appeal.

The court awarded costs to the respondent in the amount of $1,500, payable by the appellants within 21 days.

Non-compliance with the terms could result in dismissal of the appeal as abandoned.

This final judgment addresses the ongoing dispute among Jennie Carey's adult children regarding her guardianship for personal care and property.

Jennie, 91 and suffering from dementia, was found incapable of making her own decisions.

The court's interim decision had appointed Robert and Arthur as co-guardians for personal care, and Robert, Arthur, and Edward as co-guardians for property.

However, due to severe animosity and unilateral actions by both Robert and Arthur, the co-guardians were unable to cooperate.

The court found Arthur's financial conduct inexcusable and Robert's unilateral care plans not in Jennie's best interest.

Consequently, the court restructured the guardianship: Robert Carey was appointed sole guardian for Jennie's property, while Arthur Carey and Edward Carey were appointed co-guardians for Jennie's personal care.

The decision emphasizes the need for guardians to prioritize the incapable person's best interests over personal conflicts.

The respondents moved to quash an appeal on the grounds that the order appealed from was interlocutory.

The underlying Superior Court application involved a family dispute concerning the care of a 91-year-old woman with dementia.

Following a five-day trial, the trial judge made orders regarding her physical and financial care and adjourned the balance of the trial, reserving the right to make final determinations if the parties could not agree.

The Court of Appeal held that the order was interlocutory because it did not determine the subject matter of the litigation, which remained outstanding.

The appeal was quashed with costs awarded to the respondents.

The Plaintiff sought an order finding the L'vova Defendants (Aida L'vova and Yuri Kulinich) in contempt for breaching various court orders, including a Mareva injunction, an order for accounting, and an order to pay $700,000 into court.

The court found both Aida and Yuri in contempt, concluding they knowingly and deliberately acted to hide funds and defy court orders.

Aida directed the transfer of $700,000 to her son, who then transferred it to Yuri, who claimed to have used it for gambling debts.

The court imposed an initial 2-day detention, followed by an 88-day intermittent (weekend) incarceration if the $700,000 is not paid into court by mid-September 2018, emphasizing deterrence, denunciation, and coercion.

The applicants sought to remove Arthur and Douglas Carey as attorneys for property and personal care for their mother, Jennie Carey, and to appoint Robert Carey as guardian, alleging financial impropriety and isolation.

The court found strong evidence of misconduct and neglect regarding property management, including failure to account for funds and non-compliance with disclosure orders.

While Jennie was physically well cared for and wished to remain with Arthur and Douglas, their failure to foster family contact was a breach of personal care duties.

The court removed Arthur and Douglas as sole attorneys.

For property, Arthur, Robert, and Edward Carey were appointed joint guardians.

For personal care, Arthur and Robert were appointed joint guardians.

The court emphasized a nuanced approach to balance Jennie's well-being and wishes with the need for financial oversight and family contact.

Following summary judgment concerning sham property transfers designed to defeat creditors, the successful plaintiff sought full indemnity costs against two defendants based on reprehensible conduct in the litigation and underlying fraudulent dealings.

The court held this was a rare case where the successful party should bear none of the expense of pursuing justice, given the fabrication of a defence, abusive conduct, stalling, and untrue evidence.

Full indemnity costs of $121,523.99 inclusive of disbursements and taxes were awarded jointly and severally against the two defendants who acted in concert.

The court further held that s. 45(1) of the Bankruptcy and Insolvency Act applied to one defendant’s liability for costs in relation to the properties at issue.