A partner in Chaitons LLP’s litigation group, Ben has considerable expertise in the area of commercial litigation and recovery work. He regularly conducts collection or enforcement actions involving business loans, mortgages, personal property security, bankruptcies, and insurance claims. Ben works primarily on behalf of financial institutions, asset-based lenders, and title insurers. He also represents lenders in construction lien matters, priority disputes with condominium corporations, and negligence actions against professional appraisers and lawyers. One of the hallmarks of Ben’s work is his determination to go above and beyond when it comes to protecting and enhancing the interests of his clients, and to develop creative strategies for achieving his client’s goals in a cost effective manner.
After graduating with first-class honours from McGill University in 1989, Ben went on to obtain his law degree from Osgoode Hall Law School. While there, he received the Bereskin, Parr Award for Industrial Property and the Smith, Lyons, Torrance, Stevenson & Mayer Award for Corporate Finance and Securities Regulation. He began his career with Chaitons LLP as an articling student in 1992. Ben was called to the Bar in Ontario in 1994.
Ben has a significant body of reported legal decisions, including the following recent cases:
1. CIBC and Computershare – a successful appeal to the Divisional Court in a priority dispute between two mortgage lenders that has significant implications for the Land Titles Act jurisprudence and the continued application of the bedrock principles of the land titles system. The lower court decision which was overturned on appeal, had sent shockwaves through the real estate bar as it appeared to undermine the “mirror” and “curtain principles”. For more information about this case, please refer to our “In the News” section of the website, which has links to interviews of Mr. Frydenberg conducted by the Law Times and thecourt.ca.
2. CIBC and YCC 385 – a successful application in a priority dispute between CIBC and a condominium corporation, whose lien was declared void for not being perfected in time. The court was persuaded to reject the condominium corporation’s interpretation of section 134(5) of the Condominium Act, which if accepted, would have essentially allowed the corporation to control when the three month perfection period for liens arising from compliance proceedings against unit owners starts to run. This case represented a significant victory for banks in their ongoing clashes with condominium corporations in cases where mortgages are frequently subject to being subordinated to massive cost awards obtained by condominium corporations against unit owners in condominium by-law compliance proceedings. The decision was recently upheld by the Ontario Court of Appeal which emphasized the need to maintain the appropriate balance between the rights of the condominium corporations and mortgagees.
3. BDC v. Cavalon – two related decisions on both the liability and penalty phases of a contempt proceeding. In this case, an application was brought on behalf of a lender to recover insurance monies and other relief from a debtor alleged to have shifted assets to related companies in order to avoid a judgment and its obligations under a security agreement. A court order was obtained permitting the examination of a lawyer who acted for the principal of the various corporate respondents. The order also required the lawyer to produce his files prior to being examined. The court found that the lawyer turned over prejudicial documents to his former client to secure payment of outstanding accounts, in defiance of the production order. As a sanction for this conduct, Mr. Frydenberg secured a final judgment against the respondents including an order directing payment of the insurance monies out of court to his client. The contemnors were also ordered imprisoned. In August 2017, the decision was upheld by the Ontario Court of Appeal, which refused to reverse the finding of contempt, concurred that imprisonment was warranted in the circumstances, and concluded that a 45 day jail sentence was appropriate.
- Called to the Bar in Ontario in 1994
- Osgoode Hall Law School, LL.B. (1992)
- McGill University, B.A. with first-class honours (1989)
- Vice President and Director of the Dunblaine School, a private primary school for children with learning disabilities, from 2009 to 2012.
Ben represents a range of clients with a particular focus on large national and international financial institutions, and asset based lenders.