List of Court Cases (David Winer)

1) Craft Acquisition Corp. v. City of Toronto et al 2019 ONSC 1151
(SCJ Div Ct); test for granting intervener status in Stated Case to interpret
legislation before the Divisional Court;
2) J.A.L. Developments Ltd. v. Residences of Spring Hill Inc. et al
2019 ONSC 1132 (SCJ) costs of contested motion; Mr. David Winer of Kagan
Shastri LLP, in part, argued successfully that where there were two sets of
counsel, costs should be reduced accordingly due to the potential for
duplication
3) J.A.L. Developments Ltd. v. Residences of Spring Hill Inc. et al
2019 CarswellOnt 605, 2019 ONSC 177 (SCJ), test on motion under Rule 21
to strike pleadings; Mr. David Winer of Kagan Shastri LLP argued that
documents referred to in the impugned pleading are properly before the Court
on such a motion;
4) Craft Acquisition Corp. v. City of Toronto et al 2018 CarswellOnt
22497 (SCJ Div Ct), procedural decision respecting Stated Case from the
Local Planning Appeal Tribunal
5) TSCC No. 2256 v. Paluszkiewicz, 2018 ONSC 2329; 2018
CarswellOnt 5694 (SCJ); Mr. David Winer and partner, Mr. Rahul Shastri, of
Kagan Shastri LLP, successfully resisted an application brought by a
condominium corporation seeking leave to appeal from a decision of an
Arbitrator. Leave to appeal will only be granted on a question of law where the
importance justifies an appeal and where the issues will significantly affect the
rights of the parties. The Court agreed that the questions raised were not
questions of law or alternatively they would not significantly affect the rights of
the parties;
6) The Corporation of the Town of Richmond Hill v. Elginbay
Corporation et al 2018 ONCA 72; 139 O.R. (3d) 321; 2018 CarswellOnt 1643;
14 C.E.L.R. (4th) 250; 288 A.C.W.S. (3d) 178; 72 M.P.L.R. (5th) 1 (CA);
appeal from decision of Ontario Divisional Court; whether decision of Ontario
Municipal Board respecting statutory interpretation was reasonable in the
circumstances;
7) Niagara Peninsula Conservation Authority et al v. Smith 2017
ONSC 6973, 2017 CarswellOnt 19098 (SCJ); responded to a motion under
s.137.1 of the Courts of Justice Act (anti-SLAPP legislation) brought by
defendant in the context of a defamation action. Once the defendant shows
that impugned speech was on a matter of public interest, the onus shifts to
plaintiff to establish there are grounds to believe that the action has substantial
merit and there is no valid defence (and that the relative harm favours allowing

the action to proceed);
8) Gottlieb v. Malone Given Parsons 2017 ONCA 757 (CA); 2017
CarswellOnt 15093; [2017] O.J. No. 5057 (CA); 82 RPR (5th) 70; 283
A.C.W.S. (3d) 629. Mr. David Winer of Kagan Shastri LLP, successfully
resisted an appeal brought by the plaintiff from a judgment dismissing its
action as being barred by operation of the Limitations Act;
9) Morris et al v. Khadr, 2017 ONSC 4297 (SCJ); [2017] O.J. No.
3676 (SCJ); 2017 CarswellOnt 10935; 281 ACWS (3d) 156; mareva
injunction; evidence of dissipation must be clear. This was a high profile case
in which David Winer of Kagan Shastri LLP was widely quoted in the press;
10) Al Kulaqhi v. Al Khulaqhi, 2017 ONSC 4106 (SCJ), 2017 CarswellOnt
20884 (SCJ); Mr. David Winer of Kagan Shastri LLP, successfully obtained
judgment on an Application to enforce a pre-action settlement; the Court
concluded that Applicant did not repudiate settlement by bringing court
proceedings;
11) Al Kulaqhi v. Al Khulaqhi, 2017 ONSC 4367; as to costs; Mr. David
Winer of Kagan Shastri LLP, successfully argued and obtained costs on a
substantial indemnity basis where result at trial was more favourable than
amount contained in settlement offer;
12) 665750 Ontario Inc. v. Atlantic Towing Inc. et al, 2017 ONSC 4140
(CanLII); 2017 CarswellOnt 10876 (SCJ); [2017] O.J. 3687, 281 A.C.W.S. (3d)
540, and [2017] O.J. No. 3688; 2017 CarswellOnt 10875; 2017 ONSC 3905;
281 A.C.W.S. (3d) 544; Mr. David Winer of Kagan Shastri LLP successful
argued that the trial judge had discretion to receive fresh evidence prior to
issuance of final judgment; 2017 ONSC 6699 as to imputation of HST in
circumstances of deemed sale;
13) Unicorr Limited v. Malone Given Parsons, [2016] ONSC 7350 (SCJ);
(2016) CarswellOnt 18866 (SCJ); [2016] O.J. No. 6181; 273 ACWS (3d) 865;
82 RPR (5th) 47; (SCJ); Acting for the defendant, Mr. David Winer of Kagan
Shastri LLP, successfully obtained summary judgment, on a hard fought
motion, dismissing an action where the plaintiff commenced action for
professional negligence outside of the applicable limitation period. The
plaintiff was found to have sufficient facts to have discovered the claim more
than 2 years prior to commencement of the action;
14) HMI v. Index Energy et al, 2016 ONSC 5126; [2016] O.J. No. 7165; 2016
CarswellOnt 21773 (SCJ); complex construction lien dispute; successfully
resisted attempt to impose consolidated arbitration
15) The Corporation of the Town of Richmond Hill v. Elginbay Corporation et

al (2016) 133 O.R. (3d) 686, [2016] O.J. No. 4637, 2016 CarswellOnt 13958,
2016 ONSC 5560, 269 A.C.W.S. (3d) 566, 402 D.L.R. (4th) 476, 4 C.E.L.R.
(4th) 98, 54 M.P.L.R. (5th) 224 (SCJ – Div.Ct.); responded to an appeal from a
decision of OMB capping payments for cash in lieu of parkland;
16) The Corporation of the Town of Richmond Hill v. Elginbay Corporation et
al [2016] ONSC 1673 (SCJ – Div.Ct.) responded to a motion for leave to
appeal;
17) The Corporation of the Town of Richmond Hill v. Elginbay Corporation et
al [2015] ONSC 4979; [2015] O.J. No. 4164 (SCJ – Div. Ct.) test for party
seeking leave to intervene as a friend of the Court;
18) The Corporation of the Town of Richmond Hill v. Elginbay Corporation et
al [2015] ONSC 4981 (SCJ – Div. Ct.). Successfully resisted motion for leave
to introduce fresh evidence on motion for leave to appeal. Appellant sought to
introduce fresh evidence as to purported public interest of proposed appeal;
10) Paluszkiewicz v TSCC No. 2256; [2015] O.J. No. 6055 (SCJ) motion to
enforce order of Arbitrator; residential condominium dispute;
19) Landmark Vehicle Leasing Corporation v. Mister Twister Inc. et al; [2015]
ONCA 545, [2015] O.J. No. 3888 (CA), Mr. David Winer of Kagan Shastri LLP
successfully resisted an appeal. Trial judgment affirmed:
a) Written notice of assignment of lease pursuant to the Conveyancing
and Law of Property Act not required for an equitable assignment;
and
b) Collateral Fact Rule concerning evidence by way of cross-
examination at trial not offended when witness’ credibility is tested
through cross-examination, without re-opening own case.

20) Ivest Properties Limited et al v. 2355907 Ontario Inc. et al; [2014] ONSC
4916 (SCJ), a decision of Mr. Justice M.A. Garson; Mr. David Winer and Mr.
Ira Kagan of Kagan Shastri LLP, successfully moved to set aside a noting in
default and a Certificate of Pending Litigation (“CPL”). Defendant intended to
defend throughout. Moving party has obligation to make full and fair
disclosure on ex parte motion. Failure to make full and fair disclosure will
result in ex parte CPL being set aside;
12)Govan Brown & Associates v. Equinox Holdings Inc. et. al. [2014] O.J. No.
3092, 2014 ONSC 3924 (S.C.J.), 33 C.L.R. (4th) 78; 242 A.C.W.S (3d) 21,
2014 CarswelOnt 8856; David Winer and Rahul Shastri of Kagan Shastri LLP
successfully resisted an application to discharge construction lien on basis
that the lien allegedly did not comply strictly with the requirements under the

Construction Lien Act;
21) Landmark Vehicle Leasing Corporation v. Mister Twister Inc. 2014 ONSC
1436, [2014] O.J. No. 1895 (SCJ); successfully obtained judgment at trial
against lessees for lease-end obligations; [2014] ONSC 5029 (SCJ) as to
costs;
22) Weidelich v. De Koning (2014) 122 O.R. (3d) 545 (C.A.); 2014 ONCA 736
(C.A.); 384 D.L.R. (4th) 332; 62 R.P.R. (5th) 58; 246 A.C.W.S. (3d) 914;
successfully resisted appeal. Trial judgment affirmed.
In a widely reported decision, David Winer and Rahul Shastri of Kagan Shastri
LLP, successfully argued and the Court of Appeal affirmed that a party may
encroach into right of way if:

a) The right of way is a private right of way; and
b) The encroachment does not substantially interfere with the
use of the right of way, as intended and set out in the
original grant.

23) Weidelich v. De Koning [2013] ONSC 7486 (CanLii), 2013 CarswellOnt
16955; [2013] O.J. No. 5544 (S.C.J.); 39 R.P.R. (5th) 261; 235 A.C.W.S. (3d)
1122; successfully resisted application alleging that encroachment interfered
with use of a private right of way. Owner of a private right of way may
encroach into right of way (even permanently) providing that the
encroachment does not substantially interfere with the use of the right of way,
as intended in the grant;
24) Guttman et al v. Dube et al [2013] ONSC 6284 (CanLii), [2013] O.J. No.
4564 (SCJ); and (2013) ONSC 7573; application to permit accountant to
finalize financial statements; dispute concerning post-closing adjustments;
availability of defences of waiver and relief from forfeiture;
25) McColl et al v. McColl et al [2013] ONSC 5816 (CanLii), [2013] O.J. No.
4378 (SCJ); contested application for appointment of Estate Trustee During
Litigation;
26) 2256598 Ontario Inc. v. World Bowl Entertainment Centre Inc. et al 2013
ONSC 3097 (CanLII), [2013] O.J. No. 2402 (SCJ), application by commercial
tenant to enforce exclusive use covenant;
27) Global Learning Group Inc. v. Eskasoni First Nation, (2013) 115 O.R.
(3d) 558, [2013] ONCA 325 (CanLII), [2013] O.J. No. 2244, 2013 CarswellOnt
5883 (C.A.), 2013, 228 A.C.W.S. (3d) 693, 16 B.L.R. (5th) 190, [2013]
G.S.T.C. 103; and (2013) CarswellOnt 9793; (2013) ONCA 364, as to costs;

Mr. David Winer of Kagan Shastri LLP, successfully resisted an appeal from
an unreported decision of Madam Justice Stewart arising from an Application
for the interpretation of a contract under Rule 14. Mr. Winer successfully
argued that the words “inclusive of HST” did not entitle a First Nations Band a
corresponding discount where the Band is not subject to pay tax. Referenced
in Halsbury’s Laws of Canada – Contracts, at HCO 104;
28) Kolios et al v. Vranich et al [2012] ONCA 269 (CanLII), [2012] O.J. No.
1799 (C.A.) appeal from motion to stay action pending arbitration;
29) Severnwoods Construction Inc. v. Aiello [2012] ONCA 164 (CanLII),
[2012] O.J. No. 1144 (C.A.) successfully resisted appeal from unreported
decision of Mr. Justice Penny enforcing a settlement under Rule 49. The
settlement contemplated a release from the contractor in exchange for
payment from the homeowner. The homeowner insisted on a form of release
which would have expanded the terms of the settlement and made the
contractor liable for direct contracts entered into by the homeowner. Mr. David
Winer of Kagan Shastri LLP successfully argued that the settlement did not
contemplate or require such a broad release. The Court of Appeal affirmed
the decision of the motions judge;
30) Re: 2200608 Ontario Ltd. (c.o.b. Duffy’s Tavern); [2012] O.L.A.T.D. No.
241; public interest hearing. Although there was strong public opposition, Mr.
David Winer of Kagan Shastri LLP, successfully argued that the objectors had
not met the onus required of them and therefore the Board issued a liquor
licence for outdoor facilities subject to certain conditions;
31) Landmark Vehicle Leasing Corporation v. 2229919 Ontario Ltd. et al –
[2011] ONSC 7711 (CanLII), [2011] O.J. No. 6019 (S.C.J.), [2012] O.J. NO.
170, as to costs. Mr. David Winer was completely successful in moving to set
aside the fraudulent sale of vehicle under the RSLA;
32) Escubedo v. Corbett – unreported decision of Ontario Landlord and
Tenant Board dated December 12, 2011 bearing file No. TSL 21339-11. Mr.
David Winer of Kagan Shastri LLP successfully moved to terminate a tenancy
under Residential Tenancies Act; Landlord required unit in order to undertake
major renovations;
33) Landmark Vehicle Leasing Corporation v. Marino et al, [2011] ONSC 7141,
Court File No. CV-08-366010 – decision of Madam Justice Thorburn; trial
under Fraudulent Conveyance Act – Mr. David Winer of Kagan Shastri LLP
successfully obtained judgment at trial setting aside conveyance of home from
one spouse to another in an attempt to frustrate creditors; once showing is
made that transfer was prima facie fraudulent, onus shifts to transferor to
demonstrate that transaction was bona fide;

34) Pech Estate v. Kircos et al [2011] O.J. No. 1810; [2011] ONSC 2510
(S.C.J.) production motion; contested estate proceeding – successfully argued
that documents relating to personal finances of attorney under a POA ought to
be produced during the impugned period;
35) Pech Estate v. Kircos et al [2011] ONSC 27669 (CanLii), costs of
contested motion were ordered to be paid in the cause;
36) Landmark Vehicle Leasing Corporation v. Marino [2011] O.J. No. 1156,
[2011] ONSC 1671 (CanLII), (2011) CarswellOnt 1771, 199 A.C.W.S. (3d) 791
(S.C.J.). Mr. David Winer of Kagan Shastri LLP successfully obtained an
order declaring Respondent a vexatious litigant. This decision is now widely
cited as to the applicable test and appropriate indicia that must be considered
when considering the declare someone a vexatious litigant;
37) Landmark Vehicle Leasing Corporation v. Marino [2011] O.J. No. 2958,
[2011] ONSC 8028, (2011) CarswellOnt 5858, 204 A.C.W.S. (3d) 269,
(S.C.J.), Mr. David Winer of Kagan Shastri LLP successfully argued that the
Court has wide discretion and a range of remedies when fixing costs on a
vexatious litigant application;
38) JPM Express Inc. v. 2092889 Ontario Inc. et al [2010] O.J. No. 3427
(S.C.J.); possessory lien of truck under the Repair and Storage Liens Act;
39) Re: Wrong Bar Inc. 2010 OAGCD 287 (AGCO) – public interest hearing;
successfully obtained increase capacity for licenced facility. This application
was strongly resisted by the City of Toronto (Councillor Gord Perks) as well as
local area residents. Mr. Winer successfully obtained the increase in capacity
despite the vigorous opposition;

40) Re: Andy Pool Hall 2010 OAGCD 215 (AGCO) – public interest hearing to
remove conditions from liquor licence;
41) Pravtchev v. Kostadinov, [2010] CarswellOnt 145, [2010] O.J. No. 145
(S.C.J.) ; priority between non-bankrupt spouse and third party as to after
acquired asset;
42) McCormick et al v. McCormick et al [2010] O.J. No. 32, [2010]
CarswellOnt No. 31 (S.C.J.) – successfully obtained order for change of
venue for trial;
43) Royal Bank of Canada v. Ward [2009] O.J. 4300 (S.C.J.) – priority
dispute; entitlement to surplus funds as between bankrupt estate, discharged
bankrupt, deceased estate and mortgage insurance company; [2009] O.J.
5602 (S.C.J.) as to costs;

44) Muscillo v. Bulk Transfer Systems Inc. et al [2009] O.J. No. 3061, [2009]
CanLii 38508 (S.C.J. Cmmrl List); oppression; shareholder remedies;
deadlock; wind up; valuation date and [2009] CarswellOnt. 5642 as to costs;
45) Metroland Printing, Publishing & Distributing Ltd. v. Bertucci et al, [2009]
O.J. No. 2929 (S.C.J.), [2009] CarswellOnt 4059; 1179 ACWS (3d) 341 (SCJ);
personal liability of principal of company for company debt, where company
did not notify world at large that they were dealing with a limited liability
company;
46) Darlind Construction Inc. v. Rooflifters LLC [2009] O.J. No. 1263, [2009]
CanLii 13617, [2009] CarswellOnt No. 1618, (2009) 76 C.P.C. (6th) 339,
(2009) 84 C.L.R. (3d) 299 (Ont.S.C.), test for setting aside default judgment,
47) Darlind Construction Inc. v. Rooflifters LLC, 90 C.L.R. (3d) 194 (2009),
[2009] O.J. No. 4155, [2009] CarswellOnt 5995 (S.C.J.). Mr. David Winer of
Kagan Shastri LLP, successfully obtained summary judgment on a hard
fought motion where defences raised were a sham;
48) Darlind Construction Inc. v. Rooflifters LLC [2010] ONSC 734 CanLii,
[2010] CarswellOnt 569, [2010] O.J. No. 415 (S.C.J.), 90 C.L.R. (3d) 200
(2009). Mr. David Winer of Kagan Shastri LLP successfully argued and
obtained a cost award against principal of company, personally;
49) Levine v. Inwentash [2009] O.M.B.D. No. 30 (O.M.B.) – motion for removal
of solicitor from record for conflict of interest;
50) 767269 Ontario Ltd. v. Ontario Energy Savings L.P et al, [2007] O.J. No.
3211 (S.C.J.); [2007] O.J. No. 3511 (S.C.J.) (as to costs); aff’d at [2008] O.J.
No. 1711 (Ont.C.A.); Mr. David Winer of Kagan Shastri LLP successfully
obtained a declaration setting aside “negative option” renewal of contract for
supply of electricity together with a refund of amounts paid in excess of
legislated rate. On appeal the Court of Appeal agreed that the appellant could
not raise a new argument on appeal that had not been sufficiently canvassed
at trial. This case is now widely cited for this proposition that new arguments
on appeal will not be considered (unless sufficiently canvassed at trial). This
case was reported by Mark Bonokowski of the Toronto Sun in the September
21, 2007 edition of the newspaper.
51) Re: Oliveira [2008] O.A.G.C.D. No. 388, Public Interest Hearing,
successfully obtained licence despite local residents’ opposition;
52) Andy Pool Hall [2008] O.A.G.C.D. No. 299, Public Interest Hearing
concerning outdoor facilities; successfully obtained licence for outdoor
facilities (with conditions) despite strong opposition;

53) Re: Da Factory [2008] O.A.G.C.D. No. 199, Public Interest Hearing,
successfully obtained licence despite local residents’ opposition;
54) Machtinger v. Miroshnikov [2007] O.J. No. 1537 (S.C.J.), successfully
resisted a motion for the removal of counsel and summary judgment;
55) Eileen Roofing Inc. v. Wang [2007] CarswellOnt 3479 (Ont.S.C.Div.Ct.) –
costs of Anton Piller motion; successfully obtained and enforced an Anton
Piller order (which is akin to a civil search warrant) and then successfully
obtained a large cost award;
56) BMO Nesbitt Burns Inc. v. TD Waterhouse Investment Services, [2006]
O.J. No. 2074, [2006] CarswellOnt 3166, 148 A.C.W.S. (3d) 627 (S.C.J.),
injunction, enforceability of non-solicitation agreement; successfully resisted
injunction to restrain an investment advisor from working for a competitor.
This case was reported in the Dow Jones Newswire on June 7, 2006;
57) Re: 1708432 Ontario Inc. (Allegro Café) [2007] O.A.G.C.D. No. 303;
Application for liquor licence; allegations of fronting;
58) Re: Ola Restaurant, [2006] OAGCD, 373 Public Interest Hearing under the
Liquor Licence Act;
59) Re: Juke Box Live [2006] OAGCD 222, Liquor Licence Act, public interest
hearing; important precedent set that applicant cannot be prejudiced by
misdeeds of previous licence holders;
60) Levitt Lightman v. Scott, [2005) O.J. No. 5860 (S.C.J.), motion to strike
Order for Assessment of Solicitors of Account;
61) 2055502 Ontario Inc. v. MTCC No. 963, [2005] O.J. No. 2383 (S.C.J.)
–suitability of oppression remedy action under the Condominium Act on the
Commercial List – successfully argued that matter should be admitted to the
Commercial List;
62) Dorsey & Whitney LLP v. RNH Holding Ltd. [2005] O.J. 1195 (S.C.J.),
successfully resisted application by non-lawyer seeking leave to represent
corporate defendant;
63) Morrison Financial Services Inc. v. D’Andrade, [2005] O.J. 5514 (S.C.J.),
Rule 21 motion to strike claim against director as showing no reasonable
cause of action;
64) Re: Andy Pool Hall, [2004] O.A.G.C.D. 76, Public Interest Hearing;
opposition from local residents;

65) Morrison Financial Services Limited et al v. UBX Corporation et al [2004]
O.J. No. 3285 (S.C.J.). Mr. David Winer of Kagan Shastri LLP successfully
obtained an injunction on behalf of a creditor in soft receivership to restrain
defendant from disseminating negative comments to customers of debtor
corporation;
66) Re: Peekaboos Gentlemen’s Club [2004] O.A.G.C.D 109 (A.G.C.O.) –
hearing before AGCO to remove condition on liquor licence – whether change
in circumstances permitted removal of condition;
67) Doolam et al v. Sukul et al, [2004] O.J. 2875 (S.C.J.) – motion to
consolidate proceedings;
68) Visram v. Hirji et al, [2004] O.J. 1047 (S.C.J.) – motion to strike pleadings;
69) Chapman v. Falconer [2003] CanLII 64210 (Ont.S.C.) – Bills of Exchange,
Enforceability of Promissory Note;
70) Industrial Technical Services v. Top Coat Metal Finishers Inc., [2003] O.J.
5729 (S.C.J.) successfully obtained judgment at trial. Goods sold and
delivered, fitness and quality of goods, availability of set off;
71) Dick Engineering Inc. v. Thermo Tech Waste Systems Inc. [2003] O.J. No.
5132 (S.C.J.) – motion to appoint lien trustee under the Construction Lien Act.
Successfully obtained order compelling examination of principal of defendant
(examining party has prima facie right to examine representative of its choice);
72) Kleiner et al v. Canadian Young Judaea et al, [2003] O.J. No. 5131
(S.C.J.); Damages flowing from unilateral termination of contract, whether
termination justified. Summer Camp expelled a camper on suspicion of drug
use;
73) Re: T.M. Sidewalk Café, [2003] O.A.G.C.D. No. 800 (A.G.C.O.) – modest
penalty imposed where licencee had otherwise unblemished record;
74) Re: In the Matter of an Unnamed Engineer (2002) PEO Gazette, V. 21 No.
5 (A.P.E.O.) –
disciplinary proceedings against a professional engineer;
75) Children’s Aid Society of the Region of Peel v. Brampton, City of [2002]
O.J. 4502 (S.C.J.), [2003] C.C.S. 431 – application to quash by-law;
76) Gamble et al v. McCormick, [2002] O.J. 2694 (S.C.J.), [2002] C.C.S.
17261 – costs of contested estate dispute. In this case we successfully
argued that the Court should depart from normal rule (that costs are paid out
of the estate) and obtained a cost award personally against the defendant;

77) Gamble et al v. McCormick, [2002] O.J. 930, [2002] C.C.S. 19041 (S.C.J.)
– trial; successfully resisted will challenge; competency and undue influence;
78) Sunlife Trust Company v. Hellerman, [2001] O.J. 1421, [2001] C.C.S.,
16250 (S.C.J.) – successfully obtained an order for security for costs on a
contested motion. Court applied same analysis as to a motion for summary
judgment. Once the moving party establishes that it comes within the ambit of
Rule 56, the responding party has an obligation to “put its best foot forward” in
response to the motion;
79) Canpark Services Ltd. v. Imperial Parking Canada Corp. (2001), 56 O.R.
(3d) 102, [2001] O.J. 3915 (S.C.J.), 108 A.C.W.S. (3 rd ) 636. Mr. Rahul Shastri
and Mr. David Winer of Kagan Shastri LLP successfully obtained an injunction
to restrain breach of covenant not to compete. This is a leading case in the
enforceability of restrictive covenants. A contractual stipulation that a breach
will cause irreparable harm is not binding on the Court but raises, at the very
least, a presumption of irreparable harm not easily compensable in damages;
80) Gavrielides v. MCAP Mortgage Service Corp. [2001] O.R.H.T.D. No. 83
(Ont. R.H.T.) – obligations of mortgagee in possession;
81) Canam Enterprises Inc. v. Coles et al (2000), 47 O.R. (3d) 446, [2000]
O.J. 651 (S.C.J.), 95 A.C.W.S. (3d) 362, affirmed at [2000] O.J. No. 4607; 51
O.R. (3d) 481; 194 D.L.R. (4th) 648; 139 O.A.C. 1; 5 C.P.C. (5th) 218; 2000
CanLII 8514; 101 A.C.W.S. (3d) 806; 2000 CarswellOnt 4739 and reversed at
[2002] S.C.J. No. 64; [2002] A.C.S. no 64; 2002 SCC 63; 2002 CSC 63;
[2002] 3 S.C.R. 307; [2002] 3 R.C.S. 307; 220 D.L.R. (4th) 466; 296 N.R. 257;
167 O.A.C. 1; 24 C.P.C. (5th) 1; 117 A.C.W.S. (3d) 151; motion for summary
judgment; successfully argued before Nordheimer J. that claim was barred by
operation of res judicata, issue estoppel or abuse of process. Affirmed by the
Court of Appeal. Although our client was no longer a party and therefore we
did not participate, the decision was subsequently reversed at the Supreme
Court of Canada (without our participation).
82) VNB Financial Services Inc. v. Marques, [2000] O.J. No. 795, [2000]
C.C.S. 12558 (S.C.J.) – successfully obtained judgment on a contested
motion for summary judgment concerning a motor vehicle loan; defendant
attempted to assert that contract was vitiated and relied on the Frustrated
Contracts Act. Court rejected the defence and granted summary judgment;
83) RDM Sports Leisure Inc., Receiver of v. Go-Mango Fitness Equipment
[1998] O.J. No. 3253 (Ont.G.D.) – forum non conveniens; successfully argued
that Ontario was the appropriate jurisdiction for the adjudication of the dispute;

84) CIBC Trust Corp. v. Mullings [1996] O.J. 197 (Ont.G.D.), 60 A.C.W.S.
(3d) 837 – while an Articling Student, Mr. David Winer successfully argued
before a Judge of the Ontario Court (General Division) that the obligation of
residential tenant to pay rents to mortgagee in possession after service of a
Notice of Attornment of Rents, continues regardless of whether the tenant
purportedly prepaid rents to the landlord prior to service of the Notice of
Attornment of Rents.