Alfred S. Schorr

Following a successful summary judgment motion by the plaintiff bank enforcing guarantees, the court determined the appropriate costs award.

Although the guarantees entitled the plaintiff to substantial indemnity costs, the court exercised its discretion under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure to scrutinize the reasonableness and proportionality of the claimed amounts.

Certain time entries, including preparation for cross-examinations related to a defence under the Canada Small Business Financing Act, were found excessive and reduced.

The court also considered that the defendants had previously succeeded on a motion to compel answers and that costs relating to that step should not be included.

Costs were fixed at $18,000 in fees plus $3,879.04 in disbursements.

A former spouse sought to advance a proof of claim in the bankruptcy of her husband after paying amounts under personal guarantees of corporate debts owed to financial institutions.

The court considered the rule against double proof in bankruptcy, which prevents multiple claims in respect of the same underlying debt so as to preserve pari passu distribution among unsecured creditors.

The court held that the claimant could not advance a proof of claim relating to amounts paid to a bank where the bank had not recovered its debt in the bankruptcy beyond the payment she made, as this would constitute double proof.

However, the court permitted a claim for the full amount paid under a separate guarantee to another creditor whose debt had been fully satisfied.

The court also rejected the trustee’s attempt to recover household contents from insurance proceeds, accepting evidence that the separated spouses had agreed those assets would belong to the claimant.

A lender moved for summary judgment against individual guarantors following default on a small business loan.

The defendants argued that alleged non-compliance with the Canada Small Business Financing Act and its regulations voided or limited their liability under the guarantees.

The court held that the statutory regime governs the lender’s entitlement to reimbursement from the federal government and does not alter the contractual obligations between lender and borrower or guarantors.

Any non-compliance would only disentitle the lender from recovering under the statutory program, not invalidate the guarantees.

Finding no genuine issue requiring a trial, the court granted summary judgment against the guarantors.

A guarantor brought a motion to set aside an order striking her statement of defence and affidavit and to set aside a default summary judgment obtained by a bank arising from loan guarantees executed in connection with corporate borrowing.

The moving party argued she lacked independent legal advice, had limited English proficiency, and was dominated by her spouse when signing the guarantees.

The court acknowledged serious credibility concerns and delay but found potential prejudice to the guarantor if she were denied the opportunity to defend the action.

As the bank’s interests could be protected by maintaining existing execution and garnishment proceedings, the court set aside the order striking the defence and the default judgment.

The moving party was ordered to pay the bank’s thrown-away costs forthwith.

The defendants brought a motion under Rule 25.10 of the Rules of Civil Procedure seeking further particulars of allegations in a statement of claim arising from an alleged oral agreement for consulting building services.

The moving parties sought additional documentation relating to invoices from consultants and proof of payments made by the plaintiff.

The court reviewed the governing principles on ordering particulars, emphasizing that particulars are required only when the information is not within the requesting party’s knowledge and is necessary to enable a responsive pleading.

The court held that the plaintiff had already provided sufficient particulars through a detailed invoice attached to an affidavit and that the additional documents requested constituted evidence rather than particulars.

The motion was dismissed and the defendants were ordered to deliver their statement of defence.