Alexander Soutter

The appellant, a mortgagee, sought to appeal an order approving the sale of properties by a court-appointed receiver to the Town of Ajax.

The appellant argued the receiver failed to obtain fair market value.

The Court of Appeal held that the appellant did not have an appeal as of right under s. 193(c) of the Bankruptcy and Insolvency Act because it failed to establish a loss exceeding $10,000 based on the evidentiary record.

The Court also denied leave to appeal under s. 193(e), finding that the proposed appeal was a collateral attack on previous orders, did not raise an issue of general importance, and was not prima facie meritorious.

The motion judge's application of the Soundair principles was entitled to deference.

The appellants, contractors who supplied services and materials to an insolvent developer, appealed a motion judge's decision determining the quantum of their priority payables claim under s. 78(2) of the Construction Act.

The motion judge held that the deficiency in the holdbacks should be calculated as ten percent of the unpaid invoices, rather than ten percent of all invoices rendered.

The Court of Appeal dismissed the appeal, holding that where there are no subcontractor lien claims at the time of the priority dispute, and a payer has fully paid invoices from a contractor, there is no deficiency in the holdbacks related to those fully paid services or materials.

Calculating the holdback based on all invoices would result in double recovery for the contractor and unfairly prejudice the building mortgagee and other creditors.

The moving parties brought a motion for leave to appeal the decision of Akazaki J. dated January 14, 2026.

The Divisional Court granted the motion for leave to appeal, without costs.

The appellant appealed an Associate Justice's order striking its statement of defence and counterclaim due to a years-long pattern of delay and non-compliance with court orders, including a peremptory 'last-chance' order.

The appellant argued that only the counterclaim should have been struck, as the outstanding production orders related solely to it.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Associate Justice's application of the Falcon Lumber principles and concluding that the 'nuclear option' of striking the pleadings was a proportionate response to the appellant's deliberate and repeated defaults.

An appeal from a Superior Court decision regarding the provability of a former employee's profit-sharing claim in the bankruptcy of a real estate development company.

The trustee disallowed the claim on the grounds that it was an equity claim and too contingent and remote.

The appeal judge allowed the appeal, finding the profit-sharing claim was a claim for unliquidated damages for breach of contract, not an equity claim, and was therefore provable.

The Court of Appeal dismissed the appeal, upholding the lower court's decision and confirming that the profit-sharing claim is a provable claim that takes priority over the limited partners' equity claims.

This is a costs decision following an application concerning the interpretation of section 17 of the Mortgages Act and its interaction with section 8 of the Interest Act.

The court had previously determined that the first mortgagee was not entitled to charge three months' interest as a penalty.

The applicants were successful and awarded $65,625.00 with pre-judgment interest.

In this costs decision, the court awarded the successful applicants $36,000 in all-inclusive costs, comprising $10,011.03 for the period prior to the offer to settle and $15,508.87 on a substantial indemnity basis after the offer, as the applicants beat their August 12, 2024 offer to settle.

The court considered an application by Aggregated Investments Inc. for the appointment of a receiver over the assets of the respondents, including real property, under the Courts of Justice Act and the Bankruptcy and Insolvency Act.

The application was dismissed.

The court found that a bona fide defence existed regarding the underlying debt, specifically whether Aggregated breached its duty of good faith by accepting a reduced recovery and shifting value to a related party.

The court held that the appointment of a receiver was not just or convenient in the circumstances, given the triable issue as to the propriety of the debt and the conduct of Aggregated.

This appeal arose from a dispute between a first mortgagee and a second mortgagee regarding a three-month interest charge of $65,625 imposed during the discharge of a mortgage.

The application judge held that the second mortgagee had standing to challenge the payment despite having already discharged their mortgage, and that the charge was an impermissible penalty under the Interest Act because the notice of sale remained in effect.

The Court of Appeal for Ontario affirmed these findings, holding that discharging the mortgage to facilitate the sale did not strip the second mortgagee of standing.

Consequently, the Court dismissed the appeal and awarded costs to the respondents.

The parties attended a case conference to settle the form of an order arising from a previous decision by a retired judge.

The respondents sought to include language requiring the return of shares, which the applicant opposed.

The court found that the previous judge made no determination regarding the return of shares, as the issue was not before the court during the prior hearing.

The court declined to include the respondents' proposed language and settled the order in the form submitted by the applicant.

This case conference addressed a dispute over the final form of an order previously issued by a retired judge.

The respondents sought to include language regarding the return of shares, which the applicant contended was never an issue before the court.

The court, interpreting the original order and the scope of the prior hearing, determined that the retired judge had made no finding or determination on the return of shares.

Consequently, the court declined to include the proposed language, settling the order in the form submitted by the applicant.

The court determined the scale and quantum of costs following previous motions.

Primont Homes (Vaughan) Inc. sought substantial indemnity costs, arguing delay and unproven fraud allegations by the defendants, Maplequest (Vaughan) Developments Inc. and 2373480 Ontario Inc. The defendants argued for reduced partial indemnity costs due to mixed success and over-lawyering by Primont.

The court found partial indemnity was appropriate, rejecting substantial indemnity as the fraud allegations were not adjudicated on their merits.

The court also reduced Primont's requested quantum due to its unsuccessful abuse of process argument and duplicative work by its multiple timekeepers, ultimately awarding $140,000.00 in partial indemnity costs.

The plaintiff, Primont Homes (Vaughan) Inc., sought an interlocutory injunction to prevent the defendants, Maplequest (Vaughan) Developments Inc. and 2373480 Ontario Inc., from dealing with certain land lots, asserting a contractual right to acquire them.

The defendants moved to dissolve an existing interim injunction, arguing the plaintiff failed to provide an adequate undertaking as to damages and made material non-disclosures.

The court dismissed the defendants' motions to dissolve the interim injunction, finding them precluded by Rule 2.02 due to significant delay.

The court then granted the plaintiff's motion for an interlocutory injunction, determining there was a serious issue to be tried regarding the enforceability of the agreement and entitlement to specific performance, that the plaintiff would suffer irreparable harm due to the primary defendant's inability to satisfy a damages award, and that the balance of convenience favored maintaining the injunction.

The court also found the plaintiff's undertaking as to damages sufficient given the defendants' failure to quantify their potential damages from delay.

The Applicant, a mortgagee, sought to vary a previously consented receivership order concerning three properties (Harwood Properties) in Ajax.

The original order, which appointed a receiver, included provisions requiring consultation with the Town of Ajax on sales and a new development agreement with a right of re-purchase for the Town.

These terms were agreed upon in exchange for the Town's consent to the receivership and a stay of its own action regarding a re-purchase right and priority dispute.

The Applicant argued that changed circumstances, specifically the unacceptability of the development agreement terms to potential purchasers, justified varying the order and determining the priority of its mortgage over the Town's re-purchase right.

The court dismissed the motion, emphasizing the finality of consent orders and that the Applicant had agreed to the terms, which resolved a pending priority dispute.

The court found no misrepresentation by the Town that would vitiate the Applicant's consent and held that the comeback clause should not be used to prejudice parties who relied on the original order.

The Limited Partners of YG Limited Partnership appealed a motion judge's order denying them standing to oppose a creditor's (CBRE Limited) appeal of a disallowed proof of claim under s. 135(4) of the Bankruptcy and Insolvency Act (BIA).

The Court of Appeal for Ontario dismissed the appeal, holding that limited partners do not possess a direct economic interest in the claim sufficient for common law standing, nor are they granted standing under s. 135(4) or s. 37 of the BIA.

The court emphasized that the BIA is a complete code designed for expeditious resolution of bankruptcy matters, and equity owners are generally excluded from direct participation in creditor claim appeals.

This endorsement concerns a motion by Acerus Pharmaceuticals Corporation and its subsidiaries (the Applicants) under the Companies’ Creditors Arrangement Act (CCAA) for approval of a Subscription Agreement, a reverse vesting order (ARVO), releases for various parties, a sealing order, and an extension of the stay of proceedings.

The proposed transaction involves First Generation Capital (FGC), the majority shareholder and secured creditor, acquiring the Applicants' business via a credit bid and share transaction, with excluded assets and liabilities vested out to Residual Cos.

The court analyzed the necessity and fairness of the ARVO structure, the sales process, the benefit to creditors compared to bankruptcy, and the appropriateness of the releases, ultimately granting all requested relief.

The appellant buyer appealed a decision dismissing its motion for production of the respondent sellers' lawyer's file.

The appellant argued that the respondents impliedly waived solicitor-client privilege by pleading that they relied on legal advice in good faith when exercising a solicitor approval clause to terminate a real estate transaction.

The Divisional Court dismissed the appeal, holding that a denial of bad faith and an assertion of good faith reliance on legal advice does not amount to an implied waiver of privilege.

The court also found no error in the motion judge's interpretation of the solicitor approval clause.

The Proposal Trustee sought directions from the court regarding the procedure for determining a complex proof of claim filed by Maria Athanasoulis, comprising a wrongful dismissal claim and a significant profit share claim, within the context of a court-approved proposal under the Bankruptcy and Insolvency Act.

The motion addressed disagreements among stakeholders (Athanasoulis, Sponsor, and Limited Partners) on how to proceed with the claim's determination and subsequent appeal, particularly concerning the scope of evidence, the nature of the appeal (true appeal vs. de novo), and the standing of the Limited Partners.

The court provided detailed directions to ensure procedural fairness and efficiency, deferring the valuation of future-oriented damages until after the provability of the profit share claim is determined on appeal, and limiting the Limited Partners' standing to specific issues.

CBRE Limited appealed the Proposal Trustee's disallowance of its claim for a real estate commission against the debtors, YG Limited Partnership and YSL Residences Inc. The limited partners of the debtor opposed the appeal.

The court held that the limited partners lacked standing under the Bankruptcy and Insolvency Act to challenge the claim.

The court also determined that the appeal should proceed as a hearing de novo to prevent injustice, as new evidence supported the claim.

The court allowed the appeal, finding clear evidence of the commission agreement and its performance, and awarded costs to CBRE and the Proposal Trustee.

The Proposal Trustee brought a motion to compel the Proposal Sponsor to fund the Trustee's continuing work to resolve outstanding proofs of claim, specifically the Athanasoulis Claim, via a two-phase arbitration.

The Sponsor objected to funding phase 2 of the arbitration, arguing it was an improper delegation of the Trustee's duties under s. 135 of the BIA.

The court agreed with the Sponsor, finding that while phase 1 (fact-finding) was acceptable, phase 2 (final adjudication of damages) improperly delegated the Trustee's statutory responsibility to determine and value the claim.

The Sponsor was not ordered to fund phase 2 of the arbitration but remains obligated to fund the Trustee's reasonable expenses to determine the claim through an alternative process.

The appellant tenant, Hudson's Bay Company (HBC), appealed a motion judge's decision regarding relief from forfeiture under s. 20 of the Commercial Tenancies Act, seeking rent abatement due to COVID-19 impacts.

The respondent landlords (Oxford and affiliates) cross-appealed the deferral of rent payments and reduction of interest rates.

The Court of Appeal dismissed HBC's appeal, affirming that s. 20 does not permit rent abatement or reduction as it would rewrite the lease.

The court allowed the landlords' cross-appeal, finding that deferrals should only be granted to allow the tenant to comply, not to mitigate economic harm, and that the interest rate should not have been varied from the lease terms.