Brian D. Belmont

The Court of Appeal reversed the trial judge's finding that the purchaser (241 Ontario) had actual notice of a defect in the power of sale process.

The trial judge had conflated actual knowledge with constructive knowledge, finding that receipt of information suggesting the need for inquiry constituted actual notice.

The appellate court clarified that actual notice requires actual knowledge of the defect itself, not merely knowledge of facts that might prompt inquiry.

The court held that 241 Ontario was a bona fide purchaser for value without notice and could rely on the protections of the Land Titles Act.

The court also found that sections 35 and 36 of the Mortgages Act do not limit the right to rely on registration under the Land Titles Act, and that these provisions provide complementary methods of protecting bona fide purchasers.

The post-sale mortgagees' interests were upheld, and Ginkgo's mortgage was found to be valid.

The moving party, Canada Capital Corporation Inc., sought leave to appeal an order dismissing its motion to vary the terms of a power of sale.

The moving party sought to remove a term requiring proceeds of sale to be paid into court and replace it with a term allowing for a vendor take back mortgage.

The court dismissed the motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the order, and that the issue was not of sufficient importance to the public or administration of justice.

The moving party, Siddiqsons, brought a motion to strike a further affidavit delivered by the responding party, Adler, in the context of a long-delayed Show Cause hearing.

Siddiqsons argued that Adler had no right to submit further materials without leave and that the affidavit was served too late.

The Master dismissed the motion, finding that Siddiqsons had caused the initial procedural irregularities by serving their own materials late and failing to address the issue of prejudice.

Because Siddiqsons' evidence on prejudice was effectively responding evidence, Adler was entitled to deliver reply evidence.

The motion was dismissed and a new deadline for cross-examinations was set.

Over Z LLC brought a motion for contempt against N-Krypt International Corp. for failing to comply with a consent order requiring the production of audited financial statements, an accounting of investment, and other documents by specific deadlines.

N-Krypt admitted non-compliance but argued good faith, citing auditor delays due to tax season and an interpretation dispute regarding the accounting.

The court, applying the principles from Carey v. Laiken, found that N-Krypt acted in good faith and exercised its discretion to dismiss the contempt motion.

N-Krypt's cross-motion for directions to extend deadlines and schedule a new shareholders' meeting was allowed.

Costs were deferred pending N-Krypt's compliance with the new order.

The defendant brought a motion under Rule 56.07 for an order requiring the foreign plaintiff to post further security for costs.

The plaintiff conceded it had no assets in Ontario and was not impecunious, but argued it had a good chance of success on the merits in the context of an upcoming status hearing.

The court rejected the plaintiff's novel approach of assessing merits based on the status hearing rather than the action itself.

Finding the merits neutral and noting the plaintiff's failure to provide evidence regarding the action's merits, the court ordered the plaintiff to post an additional $35,400 in security for costs.

The moving party sought an order compelling the responding party to provide further particulars of allegations contained in a statement of defence and counterclaim in a commercial dispute concerning an equity investment and alleged misrepresentations.

The responding party argued that the request amounted to premature discovery and that extensive documentary evidence had already been produced in related proceedings.

The court reviewed the governing principles under the Rules of Civil Procedure regarding when particulars are required to allow a party to plead and to define the issues.

The court held that several allegations concerning breaches of agreements, statutory violations, and misrepresentations required additional specificity.

Particulars were ordered for multiple categories of allegations, subject to later submissions on costs.

The plaintiff brought a motion regarding evidentiary issues arising from a scheduled show cause hearing under Rule 48.14.

The plaintiff had delivered its show cause record only one week before the hearing, prompting the defendant to serve a responding affidavit raising the issue of prejudice.

The plaintiff sought to file a Reply Record and cross-examine the defendant's affiant on prejudice.

The Master found the plaintiff was responsible for the late delivery of materials but, given the severe consequences of a show cause hearing, exercised discretion to allow the plaintiff to file a Reply Record and conduct the cross-examination, restricted solely to the issue of prejudice and subject to costs.

The appellants appealed an order dismissing their application to set aside the dismissal of their action.

The action had been dismissed in May 2012, but the appellants subsequently brought two motions for default judgment without disclosing the dismissal or complying with the Registrar's directions.

The motion to set aside the dismissal was brought over a year later.

The Court of Appeal found no error in the application judge's conclusion that the appellants failed to move promptly and lacked a valid explanation for the delay.

The appeal was dismissed with costs.

The plaintiff landlord sued the tenant and guarantor for unpaid rent after the defendants vacated leased commercial premises before the lease term expired.

The defendants alleged they were induced to enter the lease by negligent misrepresentations regarding the presence of physicians in the building and the expected volume of patient referrals.

Applying the principles for negligent misrepresentation from Queen v. Cognos, the court held that no actionable misrepresentation was established and that the alleged statements were either unproven, not relied upon, or constituted expectations rather than guarantees.

The court also noted that the written lease contained an entire agreement clause negating extraneous representations.

The defendants voluntarily assumed the business risk and the landlord had taken reasonable steps to mitigate damages.

Judgment was granted for the plaintiff for the outstanding rent and interest.

The plaintiff sought leave to appeal an order declining to disqualify the defendants' solicitors.

The solicitors had received documents hacked from the plaintiff's computers by a third party.

The motions judge found that the solicitors disclosed the documents the day after receipt and did not realize they were obtained in breach of privacy until months later.

The Divisional Court denied leave to appeal, finding the motions judge correctly applied the balancing test from MacDonald Estate v. Martin and that there was no conflicting case law.

The appellant appealed the dismissal of its motion for a stay of action, arguing that California had exclusive jurisdiction and Ontario was not the appropriate forum.

The Court of Appeal found that the motions judge's conclusion that the appellant failed to establish exclusive jurisdiction was supported by the evidence.

The court deferred to the motions judge's discretionary finding that Ontario was the more appropriate forum and dismissed the appeal.