Colby Stuart Linthwaite

On a motion arising within long-running debt and fraudulent conveyance litigation, the moving party sought to cross-examine responding parties on affidavit materials that had already been the subject of earlier cross-examinations on a prior summary judgment motion.

The court held that, although it had serious doubts about the utility of renewed questioning and considered the issues largely unchanged, the moving party should not be barred outright from a focused further cross-examination given the different framing of the new motion.

The court therefore allowed limited cross-examinations of two responding parties, capped at three hours each, and restricted the scope for further disputes over undertakings.

Costs were left to the motions judge hearing the summary judgment motion.

The plaintiff brought a motion concerning the scope of cross-examination on affidavits relied upon by the defendants in ongoing civil litigation.

The defendants argued that the materials had already been the subject of extensive cross-examinations during an earlier similar motion and that further cross-examination should not be permitted.

The plaintiff disagreed and sought the opportunity to conduct additional cross-examinations.

The court determined that the issue required determination on the record rather than by conference call.

The parties were directed to file brief facta addressing the issue and to attend for submissions on a scheduled date.

A pharmaceutical company brought summary judgment motions against banks for conversion after an employee fraudulently issued corporate cheques payable to entities with names similar to legitimate customers and deposited them into accounts he controlled.

The banks asserted statutory defences under the Bills of Exchange Act, including the fictitious payee rule and the holder in due course provision, and advanced negligence-based counterclaims and equitable set-off.

The court held the payees were plausibly identifiable real entities and therefore not fictitious or non‑existent for the purposes of s. 20(5) of the Act.

It further found that s. 165(3) did not apply because the cheques were not delivered to authorized persons entitled to them.

The negligence-based counterclaims and related defences were barred by the strict liability regime governing cheque conversion.

The moving parties sought an order requiring the plaintiffs by counterclaim to post security for costs under Rule 56.01(1) of the Rules of Civil Procedure.

The responding parties included an individual residing outside Ontario and a corporation alleged to lack sufficient Ontario assets, and the moving parties also argued the counterclaim was frivolous and vexatious.

The court held it was unnecessary to determine those grounds because the counterclaim was closely connected to the issues in the main action, particularly the claim for rescission of a share purchase agreement.

The success of the main action and the counterclaim depended on the same factual and credibility issues.

In these circumstances, security for costs should not be ordered.

The defendants moved to set aside ex parte Anton Piller orders and Mareva injunctions obtained by the plaintiff in a fraud action involving alleged misappropriation of corporate funds and improper commissions.

The court reviewed the strict legal requirements for such extraordinary remedies and emphasized the obligation of full, fair, and frank disclosure on without‑notice motions.

It found the plaintiff failed to disclose material facts, including ongoing communications with certain defendants, repayment negotiations, employment relationships, and other contextual facts that could have influenced the original decision.

The court also found insufficient evidence that certain defendants possessed incriminating documents or posed a real risk of asset dissipation.

As a result, the Anton Piller orders and Mareva injunctions were set aside against all defendants.

A related motion by one defendant to strike portions of the statement of claim was dismissed.

The appellant, a judgment creditor, appealed an order granting partial summary judgment dismissing his claims to an interest in a property and shares in a company.

The motions judge had found that the transfer of shares in a bare trustee company effectively transferred the beneficial interest in the property it held.

The Court of Appeal allowed the appeal, finding that the motions judge improperly conflated the transfer of shares with the transfer of the beneficial interest in the land, failing to consider the requirements of the Statute of Frauds and the lack of land transfer tax payment.

The partial summary judgment was set aside, a certificate of pending litigation was granted, and the matter was directed to trial.

The respondent sued the appellant bank in conversion after a fraudulent employee deposited $4,000,000 in forged cheques into accounts at the bank.

The appellant sought to amend its statement of defence to plead estoppel by negligence, arguing the respondent was negligent in failing to detect the fraud.

The Court of Appeal upheld the lower courts' refusal to allow the amendment, confirming that conversion is a strict liability tort and that recognizing a new duty of care or a defence of estoppel by negligence would inappropriately alter the allocation of risk in the banking system.

The appeal was allowed only to the extent of permitting the appellant to plead defences arising from the respondent's actual knowledge of the fraud.

The plaintiff sought a certificate of pending litigation (CPL) over a commercial property allegedly transferred through corporate entities to defeat enforcement of a judgment debt.

The defendants opposed the CPL and moved for partial summary judgment dismissing the claims relating to the property.

The court applied the summary judgment framework articulated in Combined Air Mechanical Services Inc. v. Flesch and held that the documentary record permitted full appreciation of the issues without a trial.

Although suspicious circumstances existed, the plaintiff failed to establish essential elements of a fraudulent conveyance, including lack of consideration and knowledge by the transferee.

The property was heavily encumbered and had negative equity at the time of transfer, and statutory and equitable claims were either unsupported or barred.

Partial summary judgment was granted and the CPL request dismissed.

A secured lender applied for the appointment of a receiver over companies engaged in sub‑prime vehicle financing, while the debtor companies brought a cross‑application seeking protection under the Companies’ Creditors Arrangement Act.

The court considered the statutory tests under the Bankruptcy and Insolvency Act and the Courts of Justice Act for appointing a receiver and assessed the parties’ conduct, the deterioration of the secured creditor’s collateral, and the lack of available operating financing.

The debtor companies had made material misrepresentations regarding their financial position and had repeatedly failed to meet repayment deadlines despite forbearance arrangements.

The court found that appointing a receiver was just and convenient to preserve and realize on the secured creditor’s collateral.

The court also refused CCAA relief because the debtors had no restructuring plan or “germ of a plan,” and the major secured creditors opposed any arrangement.

The appellants appealed an order granting them an adjournment on the condition of a limited draw against debtor-in-possession (DIP) financing.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's order.

The court held that since the appellants sought the indulgence, the terms imposed were an entirely reasonable exercise of the motion judge's discretion.

The appellants appealed an order dismissing their claim.

The Court of Appeal upheld the motion judge's finding that the limitation period had expired in September 2006, two years after the trustee had knowledge of the underlying facts.

The subsequent acquisition of corporate control by a new individual did not restart or affect the running of the limitation period against the corporation.

The appeal was dismissed with costs.

The appellant appealed an order fixing the trustee's remuneration and declining to appoint a substitute trustee.

The Court of Appeal dismissed the appeal, finding that s. 39(5) of the Bankruptcy and Insolvency Act provided the motion judge with the authority to fix the remuneration.

The court also agreed that there was no basis to appoint a substitute trustee, as the appellant was permitted and capable of carrying a claim against the bankrupt.

The appeal was dismissed with costs.

The appellant's husband, while acting as an estate trustee, misappropriated millions of dollars from an estate and used the funds to purchase and renovate a luxury matrimonial home, placing title in the appellant's name.

The motion judge granted partial summary judgment against the husband, imposed a constructive trust on the home in favour of the estate, and issued a vesting order.

The appellant appealed, arguing she had contributed her own funds to the home and that the vesting order was improper.

The Court of Appeal dismissed the appeal, finding that all funds for the home's purchase and renovation came from the misappropriated estate funds, the vesting order was a proper exercise of discretion under section 100 of the Courts of Justice Act, and any notional entitlement the appellant had to reimbursement was offset by the financial benefits of living rent-free in the home for a decade.