Aaron H. Boghossian

The appellant mortgagee appealed a decision holding that the court had no jurisdiction to discharge a certificate of pending litigation (CPL) at the instance of a mortgagee exercising a power of sale.

The Court of Appeal held that s. 103(6)(c) of the Courts of Justice Act confers a broad discretion to discharge a CPL where it is just to do so, including at the request of a mortgagee whose mortgage ranks in priority to the interest claimed in the CPL.

The court found the application judge erred and set aside her order, remitting the matter to the Superior Court for further proceedings on whether the discretion should be exercised in the changed circumstances.

The moving party, Rogers Communications Canada Inc., sought to set aside previous orders dismissing its motion for security for costs against the responding party, Active Security and Cable Inc., on the basis of fraud or newly discovered facts under Rule 59.06(2)(a).

Rogers alleged that an erroneous payment of over $876,000 and other newly discovered facts regarding Active Security's financial status warranted setting aside the orders.

The court dismissed the motion, finding that the new evidence would not have likely altered the original decision, which relied primarily on a large CRA debt.

Furthermore, Rogers failed to prove fraudulent concealment and had made a tactical decision not to raise the new evidence during the appeal process.

Following a successful motion for summary judgment regarding a syndicated loan in a failed condominium project, the plaintiffs sought costs.

The court found that the defendants engaged in a litigation strategy of 'delay, deny and obstruct', including failing to disclose documents, refusing to answer questions, and delaying payment of a prior costs award.

Consequently, the court awarded the plaintiffs costs on a substantial indemnity scale, fixing the quantum at $61,000.18.

The plaintiff brought a motion for summary judgment to enforce a settlement agreement reached regarding unpaid invoices for software development services.

The defendants repudiated the settlement, arguing it was conditional, induced by duress or fraud, and that prior settlement communications were privileged.

The court found the communications were not privileged as they were necessary to prove the settlement.

The court held that an objective reading of the communications showed a binding agreement on all essential terms, and rejected the defendants' claims of duress and fraud, noting the defendants chose to settle despite having concerns about the invoices.

The motion was granted and the settlement enforced for $200,000.