Christopher J. Somerville

The moving parties brought a motion for leave to appeal the order of Papageorgiou J. dated January 15, 2025.

The Divisional Court dismissed the motion for leave to appeal without costs.

The Court of Appeal for Ontario dismissed an appeal from a summary judgment order arising from a mortgage default.

The appellant borrower argued that the respondent lender breached its duty of good faith by failing to cancel building permits to obtain a partial refund before enforcing its security through a power of sale.

The Court of Appeal held that the lender was not contractually obligated to realize on its security in any particular order, and cancelling the permits would have reduced the property's value.

Consequently, the motion judge did not err in finding that the lender acted reasonably and in good faith to maximize its recovery.

This costs endorsement follows the successful appeal by Nedaneg Financial Corporation of the dismissal of its motion for a certificate of pending litigation.

The only issue before the court was the scale of costs to be awarded.

The court found that while there was a strong prima facie case of fraud, the conduct of the respondents was not sufficiently scandalous or outrageous to warrant substantial indemnity costs.

The court awarded Nedaneg costs on a partial indemnity basis in the amount of $80,000, payable within 15 days.

The court allowed Nedaneg Financial Corporation's appeal from the dismissal of its motion for a certificate of pending litigation (CPL) against properties allegedly beneficially owned by Pedram Talebzadeh, despite title being held by others.

The court found that the Associate Judge erred by failing to consider the strong prima facie case of fraud and the relevant context, including evidence that Pedram arranged for others to hold title to defeat creditors.

The court held that the equities and balance of convenience favoured granting the CPL and granted leave to register a CPL on the Cedric and Winona Properties.

The lender, Alleghe Mortgage Fund Ltd., brought a motion for summary judgment against the borrower, Winona Park Towns Ltd., and its principal, Pedram Talebzadeh, seeking repayment of a $2 million loan secured by a second mortgage and guarantees, and leave to issue a writ of possession.

The borrower and guarantor opposed the motion and brought a counterclaim, alleging the lender acted in bad faith, that the notice of sale was invalid, and seeking to redeem the mortgage based on an earlier debt amount.

The court found no genuine issues requiring a trial, dismissing all arguments raised by the borrower and guarantor, and granted summary judgment in favour of the lender, including the dismissal of the counterclaim and leave to issue a writ of possession.

The plaintiff, Nedaneg Financial Corporation, brought a motion seeking certificates of pending litigation (CPLs) over four properties and, in the alternative, a preservation order.

The plaintiff alleged that the defendant Pedram Talebzadeh was the beneficial owner of the properties and that mortgages over them constituted fraudulent conveyances, intended to defeat a prior judgment.

The court dismissed the motion, finding that the balance of convenience favored the defendants.

The court noted that the properties were not unique, damages were quantifiable and a satisfactory remedy, and the plaintiff had delayed in enforcing its judgment.

The court also found that a preservation order under Rule 45.01 was not the appropriate remedy, as the plaintiff was essentially seeking a Mareva injunction without meeting its higher test, and the plaintiff's prior improper caution registrations weighed against granting equitable relief.

The plaintiffs sought the appointment of a receiver over the DMCC Group of companies to oversee the winding-up and termination of a Trust and the distribution of its assets.

The motion was brought after the Trust Administrator issued a wind-up notice.

The court applied the "just and convenient" test under s. 101 of the Courts of Justice Act, finding that the individual defendants' conflicts of interest and lack of meaningful progress in the wind-up process warranted an independent receiver.

The receivership was granted but limited to specific key entities (the Administrator, General Partner, and DMCC Americas (Canada)), with the possibility of expansion.

The court declined to appoint a receiver under the oppression remedy at this stage.

The moving parties sought leave to appeal an order of Conway J. The Divisional Court dismissed the motion for leave to appeal.

No costs were awarded as the responding parties failed to file a costs outline.

The law firm Torkin Manes brought a motion to remove itself as lawyer of record for the defendants.

The firm had been receiving instructions from an individual who subsequently stopped communicating with them regarding this action and a companion proceeding.

Due to the inability to receive instructions, the court found an irreconcilable breakdown in the lawyer-client relationship and granted the motion to remove the firm as lawyer of record.

The plaintiff brought motions in two related actions concerning an investment in a cannabis trust.

In the 2021 action, the plaintiff sought to amend a judgment against a defaulting defendant, add a new defendant, and amend the statement of claim to include claims under the Securities Act.

In the 2022 action, the plaintiff sought to discontinue the claim against the new defendant to consolidate it into the 2021 action.

The court granted the unopposed motions to amend the judgment and the statement of claim for existing defendants.

The motions concerning the new defendant were adjourned because he had not been properly served.

The judgment creditor sought to enforce a Québec judgment against the debtor by garnishing funds from the debtor's wealthy spouse.

The creditor brought a motion to enforce the garnishment and a refusals motion regarding the spouse's cross-examination.

The spouse brought a cross-motion to set aside the Notice of Garnishment.

The court dismissed the refusals motion, finding the questions irrelevant to whether a debt existed.

The court granted the cross-motion and struck the Notice of Garnishment, concluding that the spouse's payments to the debtor were gratuitous gifts made out of love and affection, not remuneration for services, and therefore she was not indebted to him.

This endorsement addresses four motions, primarily focusing on a refusals motion brought by the judgment creditor (plaintiff) in a garnishment proceeding.

The court dismissed the judgment creditor's refusals motion, finding that the questions posed to the garnishee were irrelevant to the core issue of whether the garnishee was indebted to the judgment debtor.

The judge emphasized that garnishment proceedings focus on current or future indebtedness and that questions about tax treatment or general business affairs unrelated to this core issue constitute an improper fishing expedition.

The plaintiff brought a motion under Rule 49 to enforce a settlement agreement after the defendant failed to make installment payments on time.

The defendant admitted the breach but requested a 30-day extension to raise funds to complete the settlement.

The court declined to delay enforcement, finding no compelling reason to depart from the agreement's terms.

The court granted judgment for the outstanding balance of $400,000, conditional upon the plaintiff transferring its investment units to the defendant upon payment.

The appellants appealed a motion judge's order dismissing their summary judgment motions seeking to bar the respondent's claim as statute-barred under the Limitations Act, 2002.

The motion judge found that the respondent did not discover her claim until September 28, 2011, when the Canada Revenue Agency confirmed that her Independent Pension Plan did not comply with the Income Tax Regulations.

The respondent had established the IPP on the appellants' advice and transferred her commuted pension value to it.

The appellants argued the claim was discoverable by August 2009 when financial advisors and accountants opined the IPP would likely be revoked.

The Court of Appeal upheld the motion judge's decision, finding that the respondent's claim was essentially a tax case hinged on the CRA's determination, and it was legally appropriate to wait for the CRA's confirmation before commencing proceedings.

Magdy Hamdy, represented by Leon Wickham in matrimonial proceedings, was awarded an equalization payment.

Conflicting directions from Hamdy regarding the payment led to an interpleader order, with funds paid into court.

Wickham failed to initiate proceedings to establish a proprietary interest in the funds.

Following an assessment of Wickham's accounts, which concluded with Hamdy owing nothing to Wickham, Hamdy applied for the release of the funds.

The court ordered the release of the funds and accumulated interest to Hamdy, as the justification for the interpleader order no longer existed.

Hampton Securities Limited appealed a trial judgment in which the trial judge found that the employee, Christina Nicole Dean, was not indebted to Hampton for trading losses, was constructively dismissed, and was entitled to six months' notice in lieu of salary.

The trial judge also awarded damages for defamation and punitive damages, along with costs on a full indemnity basis.

The Court of Appeal upheld all findings, rejecting Hampton's arguments regarding the employment contract interpretation, constructive dismissal, the enforceability of the termination clause, the qualified privilege defence to defamation, and the appropriateness of punitive damages and costs awards.

The defendants brought a motion for summary judgment, arguing the plaintiff's claim for negligent financial advice and misrepresentation was statute-barred under the Limitations Act, 2002.

They contended the plaintiff discovered her claim by August 2009 when she had concerns about her Individual Pension Plan (IPP) and sought legal advice.

The plaintiff argued the limitation period did not begin until September 28, 2011, when the Canada Revenue Agency (CRA) officially deregistered her IPP, as she could not have known of her loss or that a legal proceeding was appropriate before this final determination, especially given the defendants' prior reassurances.

The court dismissed the defendants' motion, finding the claim was timely.

The respondent was successful in opposing the appellant's motion for a stay pending appeal of a mandatory order to amend a Notice of Termination filed with the Investment Industry Regulatory Organization of Canada.

The court awarded costs to the respondent in the amount of $3,500.00, payable within 30 days.

The appellant's arguments that costs should be deferred pending the outcome of the appeal were rejected on the basis that success on a motion is assessed at the time the motion is decided, not retroactively based on appeal outcomes.

Following a trial where the plaintiff's claim was dismissed and the defendant succeeded on her counterclaim for wrongful dismissal and defamation, the defendant sought full indemnity costs.

The court found that the plaintiff's conduct in filing a knowingly false Notice of Termination with regulators and using it to extract a cash settlement was reprehensible and oppressive.

The court awarded the defendant costs on a full indemnity basis, fixed at $248,144.94, after making minor deductions for duplicative time and excessive disbursement charges.

A registered investment firm appealed a trial judgment finding that it had constructively dismissed a trader and defamed her by filing a Notice of Termination with IIROC stating she was dismissed for cause for unauthorized trading.

The trial judge ordered the firm to correct the notice.

On a motion for a stay of the mandatory order pending appeal, the court applied the three-part test from RJR-MacDonald and dismissed the motion.

The court found the appeal raised a serious question but that the appellant failed to establish irreparable harm, as the respondent suffered ongoing professional harm from the defamatory statements and the appeal would not be rendered moot by compliance with the order.