C. Reed

In a construction lien proceeding involving multiple unconsolidated actions, counsel for one lien claimant sought salvage costs from the trust monies available to all lien claimants.

The court dismissed the claim for salvage costs, finding it lacked jurisdiction to award such costs against non-consenting lien claimants where the actions were not consolidated and the counsel was not appointed carriage counsel.

The court also determined the validity and quantum of the lien claimant's claim, finding it valid for $82,278.69 despite some missing purchaser files and lack of strict compliance with written authorization requirements for extras.

The plaintiff brought a motion for costs following a protracted dispute over document production from a non-party former solicitor.

The dispute caused a seven-year delay in the action.

The court found the non-party solicitor acted unreasonably in failing to justify his fees for producing documents, while the plaintiff and defendants also contributed to the delay and unnecessary litigation.

The court ordered the defendants to pay $30,000 in costs to the plaintiff and $600 in costs to the non-party.

The applicant sought a declaration that a personal guarantee was void and unenforceable after the creditor postponed a mortgage securing the underlying debt without the guarantor’s knowledge or consent.

The applicant argued that a guarantor is discharged when a creditor materially alters the contract governing the debt.

The court held that guarantors may contract out of common law protections and that the wording of the guarantee expressly permitted the creditor to vary or modify security without releasing the guarantor.

Interpreting the guarantee’s broad language, the court found the parties intended the guarantor’s liability to remain despite alterations to the security arrangements.

The application to void the guarantee and set aside the prior judgment was dismissed.

The court-appointed receiver moved for approval of the sale of the debtor's real property, approval of its fees, and authorization to make distributions.

The debtor opposed the motion, seeking disclosure of the unredacted purchase agreement and confidential appendices without signing the receiver's proposed confidentiality agreement.

The court held that the confidentiality agreement was reasonable and necessary to protect the integrity of the sales process.

Applying the Soundair criteria, the court found the receiver's marketing process and the proposed sale were commercially reasonable.

The court approved the sale, the receiver's fees, and the interim distribution, and granted a sealing order for the confidential appendices.

A court-appointed receiver-in-aid-of-execution sought an advance order immunizing it from personal liability for costs in litigation intended to recover assets allegedly concealed by the judgment debtor through family members, corporations, and third parties.

The receiver argued that the receivership estate lacked sufficient assets to cover potential adverse costs and that denying immunity would prevent the recovery action from proceeding, undermining access to justice.

The court reaffirmed the general rule that receivers and trustees who initiate litigation do so at their own risk unless indemnified by estate assets or creditors.

The proposed undertaking by the judgment creditor was found insufficient and unsupported by evidence of financial capacity.

The court held that the case did not present exceptional circumstances warranting a departure from the “loser pays” principle and refused to create a novel category of advance cost immunity orders.

The moving parties sought an order discharging a collateral mortgage registered against a residential property, arguing the mortgage secured only an excess condominium deposit insurance facility that had been satisfied and that sufficient funds were held in trust to cover any remaining liability.

The court held that the collateral mortgage secured the entire amended financing facility, which combined Tarion warranty bonding obligations and deposit insurance obligations.

The documentation clearly indicated the security applied to all liabilities arising under the amended facility and its amendments.

The court further found that funds held in trust were not guaranteed to satisfy the insurer’s potential claims and that a court-ordered expungement of a mortgage from title through vesting orders was not equivalent to a registered discharge.

Accordingly, the moving parties were not entitled to have the collateral mortgage discharged.