Catherine Francis

This urgent motion before the Court of Appeal addressed whether a non-party, John Kavanagh, had an automatic right to appeal or should be granted leave to appeal two approval and vesting orders related to the sale of properties in a mortgage enforcement and insolvency proceeding.

The Receiver brought the motion to prevent automatic stays of the property sales.

The court found no automatic right of appeal under s. 193(c) of the Bankruptcy and Insolvency Act (BIA) because the orders were procedural and no loss exceeding $10,000 was demonstrated.

The court also denied leave to appeal under s. 193(e) of the BIA, concluding that the issues raised were not of general importance, lacked prima facie merit, and granting leave would unduly hinder the insolvency proceedings.

Consequently, Kavanagh's notices of appeal were quashed, and his motions for leave to appeal were dismissed, ensuring the property sales could proceed without automatic stays.

The plaintiff brought a motion for leave to proceed with a secondary market securities class action under the Securities Act and a motion for certification under the Class Proceedings Act.

The claim alleged that the defendant cannabis company and its directors made thousands of misrepresentations regarding revenue recognition, which were later corrected in restated financial statements.

The court dismissed the motion for leave, finding no reasonable possibility that the plaintiff could prove the alleged misrepresentations had a material impact on the share price.

Consequently, the court also dismissed the certification motion, as the pleadings failed to disclose a viable cause of action for the remaining common law and oppression claims.

The applicant sought to challenge his deceased father's 2019 Will, which left the entire estate to the applicant's mother.

The respondents moved to dismiss the application for lack of standing, relying on a 1996 Will that also left the entire estate to the mother.

The court found that the applicant failed to present sufficient evidence to challenge the validity of the 1996 Will.

Consequently, even if the 2019 Will were invalid, the applicant would have no financial interest in the estate under the 1996 Will.

The court also rejected the applicant's argument that his separate civil claim for proprietary estoppel gave him independent standing under s. 23 of the Estates Act.

The motion was granted and the application dismissed.

The appellant appealed a judgment of the Superior Court of Justice.

On consent of the parties, the Court of Appeal for Ontario dismissed the appeal without costs.

The appellant used the respondent bank's self-service transfer facility to send funds to a Polish bank, and later claimed the beneficiary defrauded it.

The Polish bank had alerted the respondent to suspected fraud, but the respondent did not pass this information to the appellant.

The appellant sued, alleging a breach of the duty of care.

The motion judge granted summary judgment dismissing the claim.

The Court of Appeal upheld the decision, finding the bank's duty of care was limited to executing the transfers properly and did not require it to investigate the bona fides of the underlying transactions.

A case conference was held to determine the sequencing and scheduling of proceedings leading up to the leave and certification motions.

The parties agreed on consent to have both motions heard at the same time and established a timetable for the exchange of materials, cross-examinations, and factums, with hearing dates set for June 7-9, 2021.

The moving party defendants brought a Rule 21 motion to strike the plaintiff's claims for oppression and breach of fiduciary duty on the basis that they were statute-barred.

The plaintiff argued that the claims were not statute-barred and that a Rule 21 motion was inappropriate for determining limitation issues.

The court found that the plaintiff discovered the factual foundation for its claims in the fall of 2017 during related estate litigation, but did not commence the action until December 2019, beyond the two-year limitation period.

The court held that this was a rare case where discoverability was not in issue, making a Rule 21 motion appropriate.

The motion was granted and the statement of claim was struck.

The plaintiff in a proposed securities class action sought an "exclusivity order" to prevent other actions on the same subject matter from being commenced in Ontario without leave of the court.

The defendants did not object.

The court denied the request, emphasizing that Ontario's established procedure for managing competing class actions involves a "carriage motion" once rival claims emerge, rather than a pre-emptive exclusivity order.

The court distinguished the Federal Court's "inclusivity order" in Heyder v. Canada (Attorney General) as not overriding Ontario's endorsed approach.

Following the settlement of an urgent application for relief from forfeiture arising from a commercial lease dispute during the COVID-19 pandemic, the court determined the entitlement to costs.

The landlord sought to rely on a lease provision granting it substantial indemnity costs for tenant defaults.

The court declined to enforce the contractual costs provision, finding the landlord acted precipitously in attempting to lock out the tenant who had sought accommodation for pandemic-related financial strain.

The applicant tenant was awarded partial indemnity costs of $43,049.10, to be set off against deferred rent payments.

The appellant brought a motion under s. 7(5) of the Courts of Justice Act to set aside an order of a single judge requiring its principal to provide a personal undertaking to pay the costs of the action and appeal as security for costs.

The Court of Appeal found that the motion judge erred in misapprehending that the principal had agreed to provide such an undertaking.

Conducting a de novo review, the Court held that while the corporate appellant had insufficient assets in Ontario, an order for security for costs was not just in the circumstances due to the respondent's delay, the appeal not being devoid of merit, and the inappropriateness of requiring a personal undertaking from a non-party principal.

The applicant sought to set aside several arbitral awards made against him in favour of the respondent companies, arguing jurisdictional errors and procedural unfairness under s. 46(1) of the Arbitration Act.

The arbitrator had dismissed the applicant's claims for wrongful dismissal and ordered him to repay misappropriated corporate funds, applying the doctrine of laches to defeat his limitation period defence.

The Superior Court applied the reasonableness standard of review from Vavilov, finding that the arbitrator acted within his jurisdiction and afforded procedural fairness.

The application to set aside the awards was dismissed, and the cross-application to enforce the awards was granted.

The commercial tenant made an assignment in bankruptcy and the trustee disclaimed the lease.

The landlord filed a proof of claim for three months' accelerated rent as a preferred claim, and an unsecured claim for the balance of the unexpired term, including unpaid tenant inducements.

The trustee disallowed the unsecured claims.

The Court of Appeal held that under Ontario law, the disclaimer of a commercial lease by a trustee in bankruptcy ends the tenant's obligations, precluding the landlord from claiming damages for the unexpired term.

However, the landlord was entitled to claim the unrecovered balance of its preferred claim for accelerated rent as an unsecured creditor under the Bankruptcy and Insolvency Act.

The plaintiff real estate brokerage brought a motion for summary judgment for unpaid commission held in trust.

The defendant vendor claimed a set-off for damages resulting from the plaintiff's agent's alleged negligence regarding the property's acreage, and argued there was an oral collateral agreement reducing the commission.

Applying the Hryniak framework and appellate jurisprudence on partial summary judgment, the court found genuine issues requiring a trial, including credibility issues and the existence of a collateral agreement.

The motion for summary judgment was dismissed.

The plaintiff City of Saskatoon was defrauded of over $1 million when it was tricked into depositing a payment meant for a contractor into a fraudulent bank account.

The funds were dispersed by the account operator to various individuals.

The City traced and froze the funds.

On a motion to determine entitlement to the remaining frozen funds, the respondents claimed to be innocent victims who paid valuable consideration.

The court found the respondents failed to provide evidence that they were bona fide purchasers for value without notice or that they had innocently changed their position.

The court ordered the remaining funds returned to the City.

The appellant brought two motions seeking to review orders relating to security for costs, an extension of time to perfect its appeal, and a dismissal of the appeal for delay.

The underlying action involved allegations that the respondent bank was negligent for failing to notify the appellant of fraud suspicions communicated by a Polish bank.

Summary judgment was granted dismissing the action.

The Court of Appeal set aside the security for costs order, the order denying a further extension of time, and the Registrar's dismissal of the appeal, granting the appellant a final extension to perfect its appeal.

The moving party, claiming to be a creditor, brought a motion to annul a bankruptcy proposal that had been accepted by creditors and approved by the court.

The moving party alleged injustice and fraud regarding the voting of contingent claims and the transfer of business opportunities to a related company.

The court dismissed the motion, finding it to be an abuse of process and a collateral attack on the court's approval order, as the moving party was aware of the material facts at the time of the creditors' meeting but failed to object or appeal.

The applicant tenant, Old Navy, sought a declaration that a co-tenancy failure occurred under its commercial lease following the bankruptcy of another tenant, Danier Leather, entitling it to pay significantly reduced alternative rent.

The respondent landlord argued the lease provisions were ambiguous and that a co-tenancy failure required a catastrophic loss of tenants, not just one small retailer.

The Superior Court of Justice dismissed the tenant's application, finding its strict literal interpretation led to a commercial absurdity and violated principles of business efficacy.

The court granted the landlord's request for rectification, amending the lease to include a reciprocal termination right that had been agreed upon in the letter of intent but omitted from the final lease by mutual mistake.

The applicants, Ronald and Maureen Kentner, moved for summary judgment to enforce a vendor take-back mortgage against the respondent, Marina Stefanovic, who had defaulted on payments.

Stefanovic opposed the motion, alleging that the Kentners' real estate agent had engaged in a scheme to artificially inflate the property's purchase price and that the Kentners were complicit.

Stefanovic also argued that partial summary judgment was inappropriate given her counterclaim against the Kentners and others.

The court granted partial summary judgment, finding the mortgage valid and enforceable, and that the Kentners did not participate in the alleged scheme.

The court determined that the mortgage claim was a discrete issue, suitable for bifurcation from the counterclaim, which would continue.

The plaintiff, 8174709 Canada Inc., brought a motion for partial summary judgment against the defendant, CBV Collection Services Ltd., for outstanding rent on a commercial lease.

The defendant brought a cross-motion to strike portions of an affidavit based on settlement privilege.

The court dismissed the plaintiff's motion for summary judgment, finding it was not an appropriate case for partial summary judgment due to genuine issues requiring a trial regarding the existence of a binding lease and breach of agreements.

The defendant's cross-motion was also dismissed without prejudice.

The Landlord, Medallion Corporation, appealed the Trustee's disallowance of its unsecured claim for damages related to the unexpired portion of a commercial lease following the tenant's bankruptcy and the Trustee's disclaimer.

The court affirmed the long-standing Ontario legal principle that a trustee's disclaimer of a lease in bankruptcy is deemed a consensual surrender, which extinguishes the tenant's obligations and precludes the landlord from claiming unsecured damages for the unexpired term beyond the preferred claim under the Bankruptcy and Insolvency Act and Commercial Tenancies Act.

The appeal was dismissed.