Benjamin Frydenberg

This appeal was dismissed as abandoned due to the appellants' failure to appear.

The respondent was awarded costs on a partial indemnity basis.

The Business Development Bank of Canada (BDC) moved for summary judgment against Oplynx Inc. and its guarantor, Toya Kelly Newton, for default on a $200,000 loan.

The defendants admitted the debt but vaguely cited "extenuating circumstances" without providing evidence.

Despite a partial payment from the sale of Ms. Newton's home, a significant balance remained.

The court found no genuine issue for trial, as the defendants failed to substantiate their defence or engage in substantive discussions.

Summary judgment was granted to BDC for the outstanding loan amount plus interest.

The court awarded partial indemnity costs, determining that the loan agreement's cost clause did not explicitly mandate substantial indemnity, and the defendants' conduct, while passive, did not meet the threshold for such an exceptional award.

The plaintiff bank brought a motion for summary judgment against the defendant corporation and its principal for the outstanding balances on two commercial loans.

The defendants argued that the loan agreements were frustrated by the COVID-19 pandemic and the resulting government-mandated lockdowns, which severely impacted their restaurant business.

The court granted summary judgment, finding that while the pandemic made performance more difficult, it did not render the contractual obligations radically different from what was agreed upon.

The doctrine of frustration did not apply to relieve the defendants of their repayment obligations.

The Toronto-Dominion Bank (TD) was successful in its application to enforce guarantees against Anwar Fares and Maya Bakhos, and in opposing the guarantors' application for a declaration that the guarantees were invalid.

The court, therefore, addressed the issue of costs.

TD sought substantial indemnity costs based on contractual provisions in the loan agreement and guarantees.

The court, exercising its discretion under section 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, found TD entitled to substantial indemnity costs.

However, the court adjusted the claimed amount, disallowing certain disbursements (flights to Ottawa, unexplained courier/taxi fees) and assessing fees based on proportionality and the unsuccessful party's reasonable expectation, ultimately ordering the guarantors to pay TD $25,723.03.

The Toronto-Dominion Bank sought judgment against a corporation and its personal guarantors for a defaulted small business loan.

The guarantors, a married couple, sought a declaration that their personal guarantees were invalid, arguing they were misled about the extent of their liability (believing it was limited to 25% of the outstanding loan, not unlimited as indicated by an 'x' in the form).

The court found the guarantees were unlimited, rejected arguments based on CSBFA regulations as irrelevant to the bank-customer relationship, and dismissed the non est factum defence due to the guarantors' failure to read the documents and the presence of a "no representations" clause.

Judgment was granted in favour of the bank.

The plaintiff brought a motion for the penalty phase of a civil contempt proceeding against the individual defendant and a third party (his spouse) for failing to comply with orders to produce documents and attend examinations in aid of execution.

The respondents sought an adjournment pending a motion to set aside the underlying default judgment, arguing the individual defendant lacked capacity due to a brain injury.

The court refused the adjournment.

Recognizing the individual defendant's severe brain injury and lack of capacity, the court declined to impose a penalty on him.

However, the court found the third party's non-compliance was wilful and motivated by personal financial gain.

The court sentenced the third party to 12 days in jail, to be served intermittently, followed by probation and a further 30 days to purge her contempt.

The appellants, Robert Bortolon and his former lawyer Robyrt Regan, appealed findings of civil contempt and custodial sentences of 90 days imprisonment.

The contempt arose from their breach of a court order (the Le May Order) requiring production of documents to the respondent bank.

The appellants had made a deal whereby Regan would deliver documents to Bortolon rather than make them available for inspection by the bank, in exchange for settlement of their personal dispute.

The Court of Appeal dismissed the appeals regarding the contempt findings but allowed the appeals regarding penalty, reducing the custodial sentences from 90 days to 45 days for each appellant.

This appeal concerns a statutory interpretation dispute regarding the priority of a condominium corporation's lien under the Condominium Act, 1998.

The appellant condominium corporation obtained a compliance order and costs award against a unit owner in February 2011.

The owner defaulted on payment of the costs in March 2011.

The corporation added the costs to common expenses in August 2011 and registered a lien certificate in December 2011.

The respondent mortgagee held a first mortgage on the unit.

The central issue was whether the corporation's lien lost priority over the mortgage because it failed to register the lien certificate within three months of the default, as required by section 85(2) of the Act.

The court held that the default triggering the three-month perfection period occurred when the owner failed to pay the costs order in March 2011, not when the owner failed to pay the claimed common expenses in September 2011.

Accordingly, the corporation's failure to register within three months caused the lien to lose priority.

The appellant appealed a summary judgment decision granting the respondent approximately $311,000 on a mortgage debt and dismissing the appellant's counter-claim for a refund of payments made.

The appellant had participated in a fraudulent transaction by allowing himself to be put forward as the mortgagor when the true owner could not qualify for a mortgage.

The appellant received $5,000 for his participation and made payments on the mortgage for seven years before it went into default.

The Court of Appeal upheld the summary judgment, finding no error in the motions judge's application of the rules and rejecting the appellant's arguments regarding the unenforceability of the mortgage.

Following a decision on the merits in two related applications, the successful applicant sought costs.

The respondent requested a reconsideration of the costs award and argued for no costs or a nominal amount.

The court declined to reconsider the entitlement to costs, noting that costs are always in play and should be addressed during the hearing.

The court considered the applicant's non-compliant offers to settle and the excessive time spent on examinations by both parties.

The court awarded the applicant partial indemnity costs of $62,510.85, inclusive of disbursements and HST, after making a reduction for unnecessary examination time.

The applicant mortgagee and respondent condominium corporation disputed priority over the proceeds of a condominium unit sold under power of sale.

The corporation claimed a priority lien for common expenses, which included court-ordered costs against the unit owner under s. 134(5) of the Condominium Act.

The court held that the default giving rise to the lien occurred when the costs were due under the court order, not when the corporation demanded them or added them to its ledger.

Because the corporation registered its lien more than three months after this default, the lien expired under s. 85(2).

The mortgagee was granted priority over the sale proceeds.

Following a finding of civil contempt against a respondent and his former solicitor for bartering non-compliance with a document production order, the court held a penalty hearing.

The court refused to allow the contemnors to revisit the initial contempt finding.

Finding that the contemnors' actions resulted in the disappearance of highly relevant documents and deprived the applicant of a fair hearing, the court struck the respondents' responding material and granted default judgment.

To denounce and deter the serious misconduct of bartering compliance with a court order for personal advantage, the court sentenced both the respondent and his former solicitor to 90 days of incarceration.

The plaintiff, Concentra Financial Services Association, and the defendant, Kenneth Rawling, brought cross-motions for summary judgment regarding a mortgage in default.

The defendant counterclaimed for a refund of all mortgage payments, alleging the mortgage was fraudulently procured.

The court found that the defendant was a paid participant in the fraudulent scheme and could not claim the mortgage was invalid.

The defence of non est factum was rejected as the defendant knew he was signing a mortgage and failed to read the documents.

The court also determined that the fraudulent misrepresentations by the solicitor, who acted for both parties, did not bind the plaintiff, as the solicitor's actions were in the interest of the fraudsters and the defendant, not the plaintiff.

Summary judgment was granted in favour of the plaintiff, and the defendant's counterclaim was dismissed.

The applicant brought a motion for contempt against the respondents and a non-party solicitor, alleging they violated a court order requiring the solicitor to make certain documents available for inspection.

The court found that the solicitor intentionally transmitted "highly prejudicial" documents to the respondent, rather than making them available for inspection, and that the respondent subsequently failed to produce these documents to the applicant.

The court found both the respondent and the solicitor guilty of contempt beyond a reasonable doubt, based on the clear terms of the order, their knowledge of it, and their intentional actions.

The court deferred the imposition of penalties and remedies to a separate hearing, noting the seriousness of the affront to the administration of justice.

Following a successful summary judgment motion dismissing the action against a financial institution, the court determined the appropriate costs award.

The moving party sought substantial indemnity costs based on the plaintiff’s refusal to accept a pre‑motion settlement offer and her failure to respond to the motion with evidence or argument.

The court found the plaintiff’s litigation conduct reprehensible, noting she lacked standing to sue, advanced a claim without merit, ignored a reasonable settlement offer, and forced the defendant to incur unnecessary litigation expenses.

Applying the principles under Rules 57 and 1.04 and the guidance in appellate authorities, the court concluded that substantial indemnity costs were warranted but reduced the claimed hours to a reasonable amount.

Costs were fixed at $14,300 inclusive of taxes and disbursements.

In a supplementary endorsement following an earlier decision, the court addressed an outstanding request by the plaintiff lender for possession of the corporate defendant’s assets pursuant to a General Security Agreement.

The court granted the request and ordered possession of the corporation’s assets, property, and undertaking.

The endorsement also clarified the commencement date and statutory basis for pre‑judgment interest under the Courts of Justice Act, confirming it would run from the date pleaded in the statement of claim.

The plaintiff was further entitled to post‑judgment interest in accordance with the statute.