Christopher J. Staples

Following the grant of leave to appeal in a bankruptcy matter concerning whether a secured creditor could credit-bid for a cause of action said not to attach to its security, the case management judge issued directions for the appeal.

The court permitted the appellant to rely on previously filed leave materials or to file fresh appeal materials, and allowed the respondent to file revised materials on a set schedule.

Intervention motions were ordered to proceed in writing under specified page limits and deadlines.

The hearing date was left to the Appeal Scheduling Unit, with oral argument capped at two hours, and costs of the leave hearing reserved to the appeal panel.

The appellant, a director of the bankrupt company, sought to pursue a cause of action against the respondent secured creditor.

The motion judge permitted the trustee to auction the cause of action and allowed the respondent to credit-bid up to the face value of its secured debt.

The appellant sought to appeal this decision.

The Court of Appeal found no appeal as of right under s. 193 of the Bankruptcy and Insolvency Act but granted leave to appeal under s. 193(e), noting that whether a creditor may use a credit bid to acquire an asset that does not attach to its security is an unsettled issue of general importance.

The defendant brought a motion to set aside a noting in default and default judgment in a mortgage enforcement action.

The court found that the default judgment was irregularly obtained because the plaintiff noted the defendant in default one day prematurely under the computation of time rules, and because the plaintiff failed to attempt personal service before using an alternative to personal service.

Alternatively, the court applied the Mountain View criteria and found it was in the interests of justice to set aside the default judgment, as the defendant moved promptly, had a plausible excuse for the default, and raised an arguable defence.

The motion was granted and the default judgment was set aside.

The plaintiffs sought a Mareva injunction against the defendants.

Before the hearing, two defendants were placed into bankruptcy by a separate creditor.

The bankrupt defendants appealed the bankruptcy orders, arguing the appeal automatically stayed the bankruptcy.

The court held that appeals from an Associate Justice's bankruptcy order lie to a Superior Court judge under s. 192(4) of the BIA, which does not trigger an automatic stay under s. 195.

Consequently, the action and Mareva injunction application were stayed against the bankrupt defendants, and a new timetable was set for the remaining defendants.

The defendant mortgagor brought a motion to set aside a default judgment for possession and $326,267.88 obtained by the plaintiff mortgagee.

The defendant argued she was mentally incapacitated when she entered the mortgage and when she defaulted, and raised defences of non est factum and lack of independent legal advice.

The court applied the five-factor test for setting aside default judgments and found the defendant lacked a plausible excuse for default, having deliberately discarded the statement of claim.

The court also found no arguable defence on the merits, as the medical evidence did not support her claims of incapacity at the relevant times, and she had signed documents confirming legal advice.

The motion to set aside was dismissed, but the default judgment was varied to deduct $1,763.60 in un-incurred fees.

An adult daughter fraudulently transferred title of her elderly parents' mortgage-free home into her own name and obtained a $760,000 mortgage from a lender.

When the daughter defaulted, the lender attempted to enforce the mortgage.

The motion judge granted partial summary judgment, declaring the transfer and mortgage void as fraudulent instruments under the Land Titles Act, and ordered the daughter to pay $150,000 in punitive damages.

The daughter appealed the punitive damages and costs, while the lender appealed the finding that its mortgage was void.

The Divisional Court dismissed both appeals, upholding the punitive damages due to the daughter's egregious conduct and affirming that under the doctrine of deferred indefeasibility, the lender's interest must yield to the innocent homeowners.

The Court of Appeal for Ontario dismissed Janina Joseph-Walker's motion to set aside the administrative dismissal of her appeal and to extend the time for perfection of her appeal in a mortgage enforcement matter.

The court found that Joseph-Walker failed to show a continuing intention to appeal, did not adequately explain her delay, and that her grounds of appeal had no merit.

The court also noted that the equities favoured AST Trust Company (Canada), as Joseph-Walker had been in default for over three years and had registered subsequent mortgages without notice.

Costs of $3,000 were awarded to AST.

This decision addresses a motion by Mr. Diab for leave to issue a writ of possession against Ms. Poka to enforce prior court orders requiring her to vacate the matrimonial home.

The court reviews the history of orders regarding the sale and possession of the home, the parties' compliance, and the need for further orders to ensure the closing of the sale.

The court finds Ms. Poka is not currently in breach of the sale and vacate orders but makes further orders to ensure compliance and the successful closing of the sale, including surrender of keys, removal of belongings, and financial disclosure.

The plaintiff, Community Trust Company, moved for summary judgment on a mortgage.

The court found no genuine issue requiring a trial, granted judgment for the plaintiff, and ordered the defendants to deliver possession of the property.

The court also awarded costs to the plaintiff.

The court granted summary judgment in favour of the plaintiffs, Nathramdas and Premwattie Chateramdas, declaring that the transfer of their property and a subsequent mortgage were fraudulent instruments under the Land Titles Act.

The court found that Melissa Sanasie fraudulently transferred title to herself and registered a mortgage in favour of RiverRock Mortgage Investment Corporation, using the proceeds for her own benefit.

The court ordered rectification of title, deletion of the mortgage, and awarded punitive damages against Melissa for her egregious conduct, including the production of falsified documents and impersonation of counsel.

The claim against RiverRock was not dismissed, and the claim against Ziba Heydarian will proceed separately.

The defendants, Lee Darvin Weinkauf and Merlie Otadora Weinkauf, brought a motion to set aside their noting in default and a default judgment obtained by RFA Bank of Canada in a mortgage enforcement action.

The court reviewed the chronology of the mortgage default, the parties' communications, and the applicable legal test for setting aside default judgments.

The court found that the defendants did not provide a plausible excuse for their failure to defend, nor did they establish an arguable defence on the merits.

The motion was dismissed, and costs were awarded to the plaintiff.

The plaintiff, RiverRock Mortgage Investment Corporation, brought a motion for summary judgment to enforce a defaulted mortgage against the defendants, Amadeus Blazys and Luisa Blazys, seeking judgment for the outstanding amount, possession of the property, and leave to issue a Writ of Possession.

The defendants argued that the action should be dismissed due to RiverRock's breaches of the Mortgages Act and the Interest Act, challenging the timing of the Statement of Claim relative to the Notice of Sale, the validity of certain fees (including a renewal fee and a three-month interest penalty upon default), and the interest rate.

The court granted summary judgment to RiverRock for the principal, prejudgment interest, renewal fee, property tax reimbursement, and some additional fees, but disallowed the three-month interest penalty and certain other fees (NSF, default proceedings fee) as offending the Interest Act.

The court also granted leave nunc pro tunc for the Statement of Claim to be issued before the Notice of Sale period expired, noting that this procedural irregularity would be considered in costs.

The plaintiff sought summary judgment for the defendants' failure to pay the outstanding principal, interest, and fees for a mortgage loan.

The defendants, self-represented, failed to file defence materials or meet deadlines, and their request for an adjournment was denied.

The court granted summary judgment, finding the defendants breached the mortgage terms, entitling the plaintiff to the outstanding debt, interest, fees, and possession of the property.

Costs were awarded to the plaintiff.

The Applicant, a third mortgagee, sought a declaration of interest in land and the allocation of surplus funds from a power of sale, disputing the priority and validity of the second mortgage held by the Respondent Turton (a solicitor's mortgage).

The application was dismissed without prejudice due to the Applicant's failure to provide notice to the Property owner, whose interests were directly at stake, and the lack of sufficient evidentiary foundation from both the Applicant and Respondent Turton regarding the precise value of their respective mortgages at the relevant valuation date.

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 plaintiff mortgagee brought a motion for summary judgment against the defendant mortgagors following a default on a mortgage.

The defendants admitted the default but disputed the plaintiff's calculation of the amount owing, pointing to a double-counted fee.

The court granted summary judgment on the issue of default, finding no genuine issue for trial, but referred the determination of the exact amount owing to a Master pursuant to Rule 20.04(3) of the Rules of Civil Procedure.

The appellants, Peter and Anka Georgakopoulos, appealed a summary judgment from the Superior Court of Justice in favour of the Bank of Montreal.

The judgment ordered them to repay over $342,000 in unauthorized line of credit advances and Peter to pay a $28,000 credit card debt, and declared an equitable mortgage over Peter's Toronto property.

The appellants argued the motion judge lacked jurisdiction, the evidence was insufficient for summary judgment, the equitable charge was improperly declared, and their counterclaim was wrongly dismissed.

The Court of Appeal dismissed the appeal, affirming the Superior Court's jurisdiction and finding no palpable and overriding error in the motion judge's conclusions regarding the evidence, the equitable mortgage, or the dismissal of the counterclaim.

The plaintiff mortgagee obtained summary judgment and a writ of possession after the defendant mortgagor defaulted on her mortgage.

The self-represented defendant subsequently obtained an ex parte order staying the execution of the writ of possession.

The plaintiff brought a motion to set aside the stay.

The court granted the plaintiff's motion, finding that the defendant failed to meet the test under Rule 37.14 to set aside the summary judgment, as she had no defence on the merits to the mortgage default and had not moved forthwith.

The plaintiff sought summary judgment against the defendant due to default under a mortgage.

The defendant opposed, seeking to bring the mortgage back into good standing and alleging bad faith by the plaintiff.

The court found no genuine issue requiring a trial but declined to grant summary judgment immediately.

Instead, it granted the defendant conditional relief under Section 23(1) of the Mortgages Act, allowing her to cure the default by paying $100 into court and all outstanding money by a specified date, failing which the plaintiff could move for judgment.

Costs were reserved.