Allison Farley

The plaintiff sought summary judgment to void the sale and mortgage transactions of two properties (Bradford and Caledon) previously owned by the plaintiff and sold under power of sale by the defendant Roy D'Mello and his companies.

The court found numerous "badges of fraud" and a strong prima facie case of sham or fraudulent transactions due to lack of documentation, questionable dealings, and evasive testimony from various defendants and related parties.

The court granted partial summary judgment, declaring the current ownership and mortgages on both properties void and directing the Registrar of Land Titles to restore the plaintiff as owner and discharge the fraudulent mortgages.

Global Fuels Inc. appealed an Associate Justice's order that dismissed its motion to compel the defendants to provide a further and better affidavit of documents.

The original motion was dismissed because the requested documents were deemed irrelevant and the request disproportionately broad, seeking thousands of pages of irrelevant material.

The appeal judge upheld the Associate Justice's decision, agreeing that the documents sought, which were not related to gas stations with exclusivity contracts with Global Fuels, were irrelevant to the pleaded causes of action (unlawful interference, inducing breach of contract, and conspiracy).

The court also affirmed the proportionality principle, noting that Global Fuels could have narrowed its request.

The appeal was dismissed, and Global Fuels Inc. was ordered to pay costs.

The appellant, Gerald Sternberg, appealed the dismissal of his action against Cresford Capital Corporation, seeking payment as a guarantor for a vendor take-back mortgage.

Sternberg had sold land to Cresford, which then assigned the agreement and mortgage to a single-purpose corporation that defaulted.

Cresford's name appeared as guarantor on the electronic mortgage registration, but Cresford argued this was an error and that no guarantee agreement existed.

The motion judge granted summary judgment to Cresford, finding no guarantee agreement.

The Court of Appeal upheld this decision, affirming that the motion judge correctly interpreted the agreements and that the electronic registration was an error inconsistent with the parties' bargain.

The Court emphasized the high standard of deference to the motion judge's contractual interpretation and found no reversible error.

The appellant appealed a decision of an Associate Justice staying its Ontario action against its former legal counsel based on a forum selection clause in the retainer agreement.

The appellant argued the Associate Justice lacked jurisdiction under s. 106 of the Courts of Justice Act to apply the strong cause test for forum selection clauses.

The Divisional Court dismissed the appeal, finding the Associate Justice had jurisdiction to stay the proceeding and made no palpable and overriding errors in enforcing the forum selection clause, which required disputes to be resolved in Alberta.

The defendants, Borden Ladner Gervais LLP and Robb McNaughton, brought a motion to stay an Ontario action initiated by the plaintiff, Pesorama Inc., on the basis of forum non conveniens.

The defendants argued that a forum selection clause in the retainer agreement between the parties stipulated Alberta as the exclusive jurisdiction for disputes.

The court applied the two-step test for enforcing forum selection clauses, finding the clause valid, clear, and applicable.

It determined that Pesorama Inc. failed to demonstrate "strong cause" to override the clause, particularly given the sophisticated nature of the parties and the commercial context of the dispute.

The court also noted the ongoing taxation process in Alberta and the inefficiency of parallel proceedings.

The motion was granted, and the Ontario action was stayed, allowing the plaintiff to pursue its claim in Alberta.

This case involved cross-motions for summary judgment concerning the enforceability of a personal guarantee provided by a defendant for a corporate mortgage.

The plaintiff, a mortgagee, sought to enforce the guarantee against the defendant guarantor, despite multiple mortgage extensions made without the guarantor's knowledge or consent.

The court applied principles of contractual interpretation, particularly the strict construction of guarantee clauses, especially for accommodation sureties.

It found that specific language in the Mortgage Schedule, which defined a time-limited guarantee, amended the broader Standard Charge Terms that allowed for extensions without affecting the guarantee.

Consequently, the guarantor's liability was held to have terminated upon the expiration of the initial term, rendering the guarantee unenforceable at the time of default.

The appellant appealed two orders of a Master dismissing two separate actions against his grandfather for delay.

The actions involved allegations of oral promises regarding the transfer of properties and a business.

The grandfather died at age 96 before the actions were set down for trial.

The Divisional Court upheld the Master's findings that there was inordinate and unexplained delay, and that the grandfather's death caused actual prejudice and a substantial risk that a fair trial was no longer possible, as the cases turned on the credibility of oral representations.

Both appeals were dismissed.

The parties, equal shareholders in six corporations holding real property, were engaged in a commercial dispute involving competing oppression claims.

The motion judge appointed a Sales Officer to initiate a process for the potential sale of the properties.

The appellant appealed the order and sought a stay pending appeal, while the respondent moved to quash the appeal on the basis that the order was interlocutory and required leave.

The Divisional Court held that the order was interlocutory because any actual sale required further court approval, meaning no substantive rights were finally determined.

Consequently, the appeal was quashed for lack of leave, and the motion for a stay was dismissed as premature since no irreparable harm could occur before a sale was approved.

The applicant tenant brought an application for the interpretation of a commercial lease to determine responsibility for property taxes, utility arrears, renovation expenses, and management fees.

The court found that the lease unambiguously made the landlord responsible for property taxes.

The court also held the landlord responsible for utility arrears incurred prior to the lease that were necessary to maintain service.

However, the tenant was found responsible for renovation costs, as well as the landlord's reasonable legal and management fees.

The respondent pension fund was defrauded of millions of dollars, with $3 million diverted into a company solely owned by the appellant.

The trial judge found the appellant liable for knowing assistance in a breach of trust based on wilful blindness, ordering her to pay $3 million.

On appeal, the Court of Appeal held that the trial judge erred by applying an objective constructive knowledge standard rather than the required subjective standard for wilful blindness.

The Court also found a palpable and overriding error in the trial judge's factual finding that the appellant continued to sign cheques without due inquiry, as there was no evidence linking her to cheques involving the diverted funds.

The appeal was allowed and a new trial was ordered on the issue of knowing receipt.

The defendants moved to dismiss the plaintiff's action for delay under Rule 24.01(1)(c), arguing the plaintiff failed to set the action down for trial within six months of the close of pleadings.

The court found an inordinate and inexcusable 2.5-year delay.

This delay resulted in substantial prejudice to the defendants' ability to defend the action due to the death of Albert Gilbert, a crucial witness whose oral promises formed the basis of the plaintiff's claim.

The motion was granted, and the action was dismissed.

The plaintiff brought a motion for a certificate of pending litigation and disclosure of real estate transactions regarding a property he previously occupied.

The defendant second mortgagee brought a cross-motion to dismiss the action against it and for a judicial sale of the property.

The court dismissed the plaintiff's motion, finding damages were an adequate remedy and the plaintiff was attempting to relitigate a prior default judgment in a mortgage enforcement action.

The court granted the defendant's motion, dismissing the action against it on the basis of res judicata and ordering a judicial sale of the property.