Calum MacLeod

Central 1 Credit Union applied to appoint a receiver over 2139770 Ontario Inc. following defaults on a $43.5 million credit facility.

The parties had entered into a forbearance agreement, but the debtor failed to deliver required underwriting documents and appraisals by the agreed deadline.

The court found the defaults were not trivial but granted the debtor a brief extension to cure the breaches and provide the missing information, effectively granting relief from forfeiture.

If the debtor fails to meet the strict new deadlines, a receiver will be appointed.

The applicant, an 86-year-old long-serving volunteer Scouter, was denied renewal of his volunteer status by Scouts Canada based on alleged safety concerns and resistance to program adaptation.

The applicant brought an application seeking to have the court intervene, arguing that Scouts Canada failed to follow its own disciplinary and performance management policies.

The court found that the relationship between the volunteer and the organization was contractual in nature, giving the court jurisdiction to intervene.

The court concluded that the allegations of misconduct were unfounded and that Scouts Canada breached its duty of procedural fairness by failing to follow its policies.

The court granted declaratory relief, a mandatory order for the processing of any future applications by the applicant, and substantial indemnity costs.

The applicant commercial tenant sought a declaration that it had been overcharged for base rent and requested a retroactive rent rebate of at least $450,000.

The tenant argued that the rent charged exceeded market rates and relied on certain lease provisions referencing rentable area and market rents.

The court dismissed the application, finding that the parties had freely negotiated and agreed to the rent increases as the tenant expanded its footprint.

The court held that the lease did not contain a general right to a retroactive rent adjustment based on market rates.

The applicant father brought a motion to change child support, seeking a retroactive adjustment to 2017 based on the offset method in the parties' separation agreement.

Both parties sought to impute income to the other, alleging underemployment and questioning rental income deductions.

The court declined to impute income to either party, finding their employment choices and periods of unemployment legitimate.

The court ordered a retroactive adjustment of child support based on the parties' actual declared incomes for each year, resulting in arrears owed by the respondent mother.

A carriage motion was brought to determine which of two competing proposed class actions regarding allegedly misleading 'recyclable' claims on Keurig coffee pods should proceed in Ontario.

The court evaluated the competing proposals under section 13.1(4) of the Class Proceedings Act, focusing on efficiency, productivity, and proportionality.

The court awarded carriage to the Buis action, finding its narrower class definition and reliance on a damages model already utilized in a U.S. settlement offered a more efficient path to resolution.

The competing Gordon action was stayed.

The plaintiff landlord sought to continue an ex parte injunction preventing the defendant tenant from removing equipment, including an external HVAC unit and generator, from the leased premises.

The tenant argued it had paid for the equipment and had the right to remove it.

The court found a serious issue to be tried regarding the ownership of the equipment and whether it constituted fixtures or trade fixtures.

The court concluded that the balance of convenience favoured leaving the external HVAC unit and generator in place pending the litigation, effectively granting a preservation order, while noting that damages would be an adequate remedy for equipment already removed.

The defendants brought a motion to set aside a default costs assessment of $83,273.75.

The defendants' lawyer of record had been notified of the assessment hearing but failed to advise the defendants or attend the hearing.

The court applied the test for setting aside a default judgment and found that the motion was brought promptly, there was a plausible excuse for the default, and the defendants had an arguable defence on the quantum of costs.

Emphasizing the principle of determination on the merits, the court set aside the default assessment and remitted the matter to the Assessment Officer, on the condition that the judgment amount remain in trust.

In a personal injury action arising from a motor vehicle accident, the parties brought motions and cross-motions to resolve outstanding undertakings, refusals, and a proposed pleading amendment.

The court denied the defendant's request for the plaintiff's CAS and medical records, noting the plaintiff limited her Family Law Act claim.

The court ordered the defendant to produce MTO records and witness contact information but denied the request for the deceased defendant's medical records.

Finally, the court granted the defendant Estate leave to amend its statement of defence to plead plene administravit, protecting the estate trustees from personal liability, without requiring further discovery.

The moving party defendants in a proposed class proceeding related to the 'Freedom Convoy' sought access to $200,000 of frozen escrow funds to retain counsel.

The funds were originally frozen by a Mareva injunction and a criminal restraint order, and were raised through crowdfunding platforms to support convoy participants.

The court dismissed the motion, finding that the funds were not the personal assets of the defendants and that the moving parties failed to provide full and frank financial disclosure to demonstrate impecuniosity or an inability to defend the action without access to the frozen funds.

The respondent father brought an urgent motion to determine where the parties' four-year-old child should attend Junior Kindergarten, as the parents were deadlocked.

The father sought enrollment at Hopewell Public School, where the older sibling attended, while the applicant mother proposed French language schools.

Noting the lack of adequate evidentiary record to determine the child's best educational interests, the court ordered the child to be enrolled at Hopewell Public School to break the stalemate and maintain the status quo until a final determination could be made.

The plaintiffs brought a pleading amendment motion in a class proceeding.

Counsel requested an adjournment because the Public Inquiry was ongoing, and certain defendants indicated a desire to bring a motion to strike portions of the claim.

The court ordered the motion adjourned to January 2023, to be heard alongside any motion to strike, and set a timetable for the exchange of materials.

The respondents brought an unopposed motion to distribute the residue of their late father's estate and to require the applicant estate trustee to repay certain amounts to the estate.

The court found that the estate trustee had failed to properly administer the estate, resulting in unnecessary costs and delays.

The court ordered the estate trustee to reimburse the estate for improper expenses, denied her claim for trustee compensation, and directed the distribution of the remaining funds with setoffs against the estate trustee's share for her liabilities and previous costs awards.

The plaintiff brought a motion to approve a class action settlement and class counsel fees regarding allegedly defective dive computers manufactured by the defendant.

The settlement included an inspection and repair program, a reimbursement fund, and educational certificates.

The court found the settlement to be fair, reasonable, and in the best interests of the class.

The court also approved class counsel fees of US $400,000 and a $5,000 honorarium for the representative plaintiff.

Following the dismissal of the plaintiff's claim against the defendant, the defendant sought costs of $9,618.18.

The plaintiff, who was self-represented, responded with pseudolegal OPCA arguments rather than addressing the costs factors.

The court noted the defendant's costs were reasonable but reduced the amount slightly to be scrupulously fair.

Costs were awarded to the defendant in the amount of $7,264.00 on a partial indemnity scale.

The moving parties, the Canadian Federation of Students (CFS), brought a motion for an interim injunction to prohibit the responding party, the Carleton University Students' Association (CUSA), from proceeding with a referendum regarding disassociation from CFS.

CFS argued the referendum violated its bylaws, which dictate a specific process and timeline for such votes.

CUSA contended the referendum was merely consultative and non-binding.

Applying the RJR-MacDonald test, the court found a genuine issue to be adjudicated and that proceeding with the referendum would cause irreparable harm by subverting the regular process to which all members are bound.

The court granted the mandatory order prohibiting the referendum.

The plaintiffs brought a motion arising from a discovery dispute, seeking to exclude one co-defendant from the virtual discovery of the other and requesting costs thrown away for previously cancelled discoveries.

The court found that the risks of improper collaboration are heightened during virtual discoveries when co-defendants are in the same location without counsel present.

The court ordered that the co-defendants be examined in the absence of each other.

The request for costs thrown away was denied due to both counsel's failure to communicate effectively and agree on a discovery plan.

The solicitors brought a motion to transfer the assessment of their bills from Toronto to Ottawa, arguing that systemic delays in Toronto would prevent a hearing until 2024, whereas Ottawa could hear it within three months.

The clients did not appear or object.

The court dismissed the motion, finding that Toronto was the appropriate venue as the legal work, the lawyers' office, the clients, and the underlying litigation were all located in or connected to the Greater Toronto Area.

The court noted that while the assessment system in Toronto is plagued by delays, transferring cases to unrelated regions is not the appropriate solution.

The plaintiffs brought a products liability action against the manufacturer of an 'Instant Pot' pressure cooker, including a Chinese corporation, GD Midea.

The plaintiffs failed to formally serve GD Midea in China pursuant to the Hague Convention, although GD Midea's insurer had actual notice of the claim and had mistakenly served a statement of defence.

The plaintiffs sought an order validating service or extending the time for service.

The court held that Rule 17.05(3) is a complete code for service in Hague Convention signatory states, and service could not be deemed or validated simply because the defendant had actual notice.

However, given the lack of prejudice and the defendant's actual knowledge of the claim, the court granted a 24-month extension of time to effect formal service through the Central Authority in China.

The plaintiff sought to certify a class action against an endoscopy clinic and its operator following a public health notice regarding infection control lapses.

The notice advised former patients to be tested for blood-borne diseases.

The plaintiff, who tested negative, sought compensation for exposure to enhanced risk of infection, shock, trauma, and inconvenience.

The court found that the claims raised genuine common issues, including duty of care, standard of care, and foreseeability of harm.

The court also determined that a class proceeding was the preferable procedure for resolving the claims of the 6,800 affected individuals.

The certification motion was granted.

The applicant sought to admit a document entitled 'Outline of Will' to probate as the last will and testament of the deceased.

The document was in point form but signed and witnessed.

The court found ambiguity as to whether the document was intended to be a will or merely an outline for a future will, and whether it was intended to revoke previous wills.

The application was adjourned to allow the applicant to provide additional evidence regarding the circumstances of the document's execution and the intentions of the deceased.