416.597.0000

Marc Kestenberg

Selected Cases
  • Canadian Appliance Source Inc. Utradecanada.com Inc., 2017 ONSC 4959 – Successfully argued that the opposing party had waived privilege over all communications with its lawyer when it chose to file the Affidavit of its lawyer in support of a motion for summary judgment.
  • Powers v. Tufman, 2017 ONSC 7210 – Successfully brought a motion for summary judgment dismissing a $70 million claim against a lawyer for professional negligence.
  • 2230583 Ontario Inc. v. Pizza Pizza Ltd., 2017 ONSC 3059 – Successfully responded to an Application by a Landlord seeking a declaration that Pizza Pizza vacated its lease four years early.  It was determined that Pizza Pizza did not breach its lease with the Landlord.
  • Canadian National Railway Company v. Holmes, 2017 ONSC 3177 – Successfully defended a lawyer in a claim for costs against her personally by the opposing party after it was found she acted for companies that did not exist.
  • Aird & Berlis v. Oravital Inc., 2017 ONSC 3391 – Successfully represented a law firm in pursuit of its legal fees and had a counterclaim for professional negligence against the firm dismissed in its entirety.
  • TravelBrands Inc. (Re), 2017 ONSC 3161 – Successfully argued that despite a settlement contract being silent as to payment of HST by the parties, that the settlement payments under the contract were exclusive of HST and therefore, HST had to be added to any payments under the contract.
  • Canadian Appliance Source Inc. v. UtradeCanada.com Inc., 2016 ONSC 2023, (Div. Court) (leave to appeal to the Court of Appeal refused) – Successfully appealed a Master’s Order refusing to amend a counterclaim to add parties on the basis of alter ego liability.
  • Turner v UAP, 2016 ONSC 696 – Successful motion for Security for Costs clarifying the test on establishing a ‘good case on the merits’.
  • Galineas v. RBC Dominion Securities Inc., 2014 ONCA 20 – Successful motion for summary judgment to enforce a limitation period.
  • B2B Bank v. Batson, 2014 ONSC 6105 – Motion to permit a judgment to survive bankruptcy.
  • 8440522 Canada Inc. (Re) 2013 ONSC 2509 – Successful motion for two interim orders in connection with the Mobilicity Group’s Plan of Arrangement.
  • Marchant v. RBC Dominion Securities, 2013 ONSC 2042 – Successful motion and appeal of a decision refusing to consolidate five different proceedings.
  • The Catalyst Capital Group Inc. v. Data & Audio-Visual Enterprises Wireless Inc., 2013 ONSC 2170 – Motion to enforce a “no action” clause in an Indenture in the wake of oppression proceedings.
  • Re: Gennum Corporation, 2012 ONSC 1738 – Successful application for approval of a Plan of Arrangement.
  • Beaton v. Scotia iTrade and Scotia Capital, 2012 ONSC 7063, (affirmed 2013 ONCA 554) – Successful motion and appeal for Summary Judgment to enforce a limitation period.
  • Baffinland Iron Mines Corp., Re, 2011 ONSC 2761 – Successful application for approval of a Plan of Arrangement.
  • Deep v. ScotiaMcLeod Direct Investing, 2011 ONSC 4821 (S.C.J.) – Successful application to stay a vexatious litigants proceedings.
  • Hodaie v. RBC Dominion Securities et al, 2011 ONSC 6881 (ONT SCJ) affirmed (2012 ONCA 796 (ONT CA)) – Successful motion and appeal to enforce a settlement estopping a claim.
  • Shinoff v. BMO Nesbitt Burns Inc., 2010 ONSC 926 – Successful motion to stay an action on the basis of forum non conveniens
  • Livingston v. RBC Financial Group, 2010 CarswellOnt 5167 (Ont. S.C.J. July 14, 2010) leave to appeal dismissed (Ont. C.A. Oct 27, 2010, and S.C.C. Dec 21, 2010) – Successful motions and appeals to strike out an action on the basis of failing to pay outstanding cost awards.
  • Freedom International Brokerage Co. v. Tullett Prebon Canada Ltd., 2009 CarswellOnt 6113, [2009] O.J. No. 4267 – Successful motion to quash an appeal.
  • Polar Star Mining Corp. v. Willock, [2009] O.J. No. 1125 – Successful response to motion by dissident shareholder in the context of a proxy fight.
  • Radonicioh v. Rushton, 2009 CanLII 55301 – Successful motion to strike pleading on the basis that it was frivolous and vexatious and failed to disclose a cause of action.
  • Quebecor Medic Inc. v. Osprey Media Income Fund, 2007 CanLII 32669 – Application to enforce a standstill agreement in connection with an auction process.
  • MGM Mirage v. Marchildon, 2005 CanLII 63716 – Successful motion for summary judgment.

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