Peter Allan Cumming

The plaintiff brought a motion for summary judgment to recover amounts owing under a loan agreement.

The defendant admitted the loan in his statement of defence but alleged he signed the agreement under duress and without understanding its legal ramifications.

The defendant did not appear on the motion despite service by mail and email, which the court validated under the Rules of Civil Procedure.

The court found there was no genuine issue requiring a trial and that the evidentiary record established the debt.

Summary judgment was granted for the outstanding loan amount with contractual interest and substantial-indemnity costs.

Costs were determined following the plaintiff’s unsuccessful motion for partial summary judgment in an insurance dispute.

The defendant sought substantial indemnity costs, arguing the moving party acted unreasonably in bringing the motion under Rule 20.06(a) of the Rules of Civil Procedure.

The court rejected that argument, finding the motion was brought reasonably given the complexity and uniqueness of the issues.

Applying the ordinary rule that costs follow the event on a partial indemnity basis, the court awarded costs to the responding party while directing expert fees to follow the cause at trial.

The plaintiff brought an urgent motion seeking injunctive relief and an Anton Piller order against former employees and a competing corporation.

Evidence indicated that one former employee downloaded thousands of confidential corporate files prior to leaving employment and that the defendants were using the information to compete for the plaintiff’s principal customer.

Applying the three‑part test for interlocutory injunctions under the Courts of Justice Act and the Rules of Civil Procedure as articulated in RJR‑MacDonald Inc. v. Canada (Attorney General), the court found a serious issue to be tried, irreparable harm to the plaintiff’s business, and that the balance of convenience favoured the plaintiff.

The court held that the defendants’ conduct arguably breached contractual confidentiality obligations, restrictive covenants, and duties of confidence.

Injunctive relief restraining the defendants’ conduct was granted.

The moving creditors in a bankruptcy sought leave under s. 38 of the Bankruptcy and Insolvency Act to commence an action relating to the administration of the bankrupt estate, and also sought leave under s. 215 of the Act to include the Office of the Superintendent of Bankruptcy and two of its employees as defendants.

The proposed claim against the regulatory authority and its employees alleged negligence in the investigation and handling of complaints about the trustee’s conduct.

The court held that all material facts supporting the negligence claim were known by June 23, 2008, when a registrar issued a decision finding misconduct by the trustee.

Accordingly, any claim against the regulatory authority defendants was barred by the two‑year limitation period under the Limitations Act, 2002.

Leave to include those defendants was refused, but authorization under s. 38 to pursue claims against other defendants was granted.

At a Commercial List case conference in a civil action involving debt obligations and guarantees, the court addressed procedural scheduling and evidentiary issues relating to an upcoming summary judgment motion.

The principal issue on the anticipated motion was whether the plaintiff’s claims were statute‑barred under applicable limitation laws, potentially governed by German law.

The court directed the parties to produce supplementary expert reports addressing the applicable foreign law and its limitation periods, particularly in light of allegations of fraudulent concealment that might affect discoverability.

The court also addressed potential hearsay objections to affidavit evidence and ordered preservation and production of relevant documents for the period 1996–2004.

The plaintiff credit union, in liquidation, brought a motion for partial summary judgment against its insurer under a fidelity bond.

The claim arose from an internal fraud perpetrated by the credit union's general manager, who engaged in an off-book deposit scheme that disguised a significant capital shortfall.

The insurer denied coverage, arguing that the plaintiff failed to prove a direct loss caused by the dishonest acts and that the losses were indirect or consequential.

The court dismissed the motion, finding that the complex forensic accounting evidence required viva voce testimony and cross-examination at trial to determine causation and quantify the covered loss.

A bankrupt sought a discharge under s. 169 of the Bankruptcy and Insolvency Act.

Two creditors opposed the discharge and requested authorization under s. 38 of the Act to pursue recovery proceedings in the trustee’s name where the trustee declined due to lack of funds.

The court reviewed the complex financial history of the bankrupt, including transfers of real property, potential settlements within five years of bankruptcy, and substantial payments relating to the bankrupt’s spouse’s medical care.

The court concluded that a creditor‑initiated s. 38 proceeding could provide the only realistic opportunity for recovery for the estate and imposed conditions for creditor notice, participation, and court approval of any settlement.

The discharge hearing was adjourned pending further developments.

A secured creditor brought an application under the Bankruptcy and Insolvency Act seeking the appointment of an interim receiver over the assets of a debtor corporation.

The debtor opposed the application and brought a motion to stay the receivership proceeding or alternatively to consolidate it with a separate action challenging the validity of a general security agreement and alleging contractual breaches.

The court found on the evidence that the debtor was insolvent, unable to meet obligations as they became due, and operating at a deficit.

As the debtor had granted security that became enforceable upon insolvency, the secured creditor’s interest required protection through court supervision.

An interim receiver with limited powers was appointed and the debtor’s motion for a stay or consolidation was dismissed.

The landlord brought a motion to quash the tenant's appeal of two Landlord and Tenant Board orders and to lift the associated certificate of stay.

The tenant did not appear at the hearing.

The Divisional Court granted the motion, quashed the appeals, lifted the stay, and directed the Sheriff to forthwith give vacant possession of the rental unit to the landlord.

Costs were awarded to the landlord on a substantial indemnity scale fixed at $15,000.

The landlord moved to quash the tenant's appeal of Landlord and Tenant Board eviction orders and to lift the certificate of stay.

The tenant, who had a history of non-payment of rent and had provided dishonoured cheques, repeatedly sought adjournments of the motion on medical grounds, which were contradicted by his own doctor.

The court found the tenant was attempting to avoid service and delay the proceedings.

The motion was granted, the appeal was quashed as frivolous and an abuse of process, and the sheriff was directed to give possession of the premises to the landlord.

The appellant appealed a Small Claims Court judgment ordering him to repay an outstanding Canada-Ontario integrated student loan and striking his defence and counterclaim.

The appellant argued that the Attorney General of Canada could not independently collect the loan without the Attorney General of Ontario and raised various conspiracy claims.

The Divisional Court dismissed the appeal, finding that Canada had an independent, enforceable contract with the appellant, who was in default.

The court also noted that the appellant's counterclaim vastly exceeded the Small Claims Court's monetary jurisdiction.

The solicitor of record for the appellant brought a motion to be removed due to a breakdown in the solicitor-client relationship.

The court granted the motion, finding the breakdown apparent.

Given the complexity of the matter, the court adjourned the scheduled appeal sine die to allow the appellant 40 days to obtain new counsel.

The issue of wasted costs for the adjournment was left to the panel ultimately hearing the appeal.

The estate trustee and a residual beneficiary appealed a trial judgment that found the deceased's daughter and grandchildren were dependants under the Succession Law Reform Act and ordered the estate to be kept open indefinitely to provide them housing.

The Divisional Court upheld the finding that the will failed to adequately provide for the dependants.

However, the Court found the trial judge's administrative scheme, which required the estate to obtain a mortgage it could not afford, was impossible to implement.

The Court varied the order, directing the property be transferred to the dependant daughter, who must obtain a mortgage to pay estate debts and a lump sum to the residual beneficiary, with the property to be sold in 2018 and proceeds divided.

The plaintiff sought leave to appeal an order striking his statement of claim with leave to amend.

The claim sought damages for wrongful dismissal and mental distress but failed to plead an independent actionable wrong to support the mental distress claim, as required by established jurisprudence.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's order and awarding costs to the defendant on a partial indemnity basis.

The tenant appealed a decision of the Landlord and Tenant Board, arguing the Board erred in finding the landlord acted in good faith and that the notice of termination was sufficient.

The Divisional Court dismissed the appeal, finding no error of law in the Member's decision.

The Court also dismissed the tenant's motion to adduce fresh evidence, noting it would not have changed the finding of good faith.

The tenant appealed a decision of the Ontario Rental Housing Tribunal terminating his tenancy and ordering him to pay rent arrears.

The tenant argued that he had a private agreement with the landlord's property manager to freeze his rent indefinitely, and that the landlord was estopped from resiling from this agreement.

The Divisional Court dismissed the appeal, holding that section 2(1) of the Tenant Protection Act prohibits landlords and tenants from contracting out of the Act's provisions, even where the agreement benefits the tenant.

The court also held that the doctrine of estoppel cannot override a clear statutory prohibition.

The appellant appealed an order of a Small Claims Court Deputy Judge that set aside a default judgment and allowed the respondent to file a defence.

The Divisional Court found that the Deputy Judge exercised his discretion to allow the respondent to defend the claim on the merits and that there was no palpable and overriding error in that exercise of discretion.

The appeal was dismissed.

The defendant sought leave to appeal an order dismissing its appeal from a Master's decision.

The Master had denied the defendant's request to substitute its Manager of Environmental Health and Safety for its in-house counsel as the corporate representative for examinations for discovery.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions or good reason to doubt the correctness of the lower court's decision, and affirming that there is no blanket exclusion of lawyers from discovery simply because of solicitor-client privilege.

The landlord brought a motion to quash the tenant's appeal of an Ontario Rental Housing Tribunal order terminating the tenancy for non-payment of rent.

The tenant argued the tribunal erred in finding he was the tenant rather than his foundation.

The Divisional Court found the tribunal made a correct finding of fact based on the lease signature and that the appeal failed to raise a legitimate question of law.

The court granted the motion, quashing the appeal as an abuse of process designed to obtain an automatic stay of eviction.

The applicant moved for a stay of an order revoking its liquor licence pending an appeal to the Divisional Court.

The Board had revoked the licence after finding that drug dealing was openly conducted on the premises with the owner's knowledge.

The court dismissed the motion for a stay, finding that the appeal lacked bona fides, the applicant failed to establish irreparable harm, and the balance of convenience favoured the public interest in removing the licence.