Daniel W. Veinot

The appellant appealed a judgment dismissing a motion for a declaration that a debt arising from a 2016 default judgment survived the respondent's bankruptcy discharge under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

While it was undisputed that the respondent fraudulently embezzled funds from their shared corporation, the motion judge found no evidence that the respondent owed the appellant a fiduciary duty as a co-director or shareholder.

The Court of Appeal found no reviewable error in the motion judge's conclusion that there was no power imbalance requiring absolute loyalty, and dismissed the appeal.

The defendants, Robert B. Woodrow and Anne Woodrow, brought a motion seeking a declaration that a default judgment debt owed by Ross E. Greb (a third party and co-shareholder/director) survived his consumer proposal discharge under section 178(1)(d) of the Bankruptcy and Insolvency Act.

The Woodrows argued the debt arose from fraud or misappropriation while Greb acted in a fiduciary capacity.

The court dismissed the motion, finding insufficient evidence in the original default judgment record to establish that Ross E. Greb owed a personal fiduciary duty to Robert Woodrow.

The general rule that directors owe fiduciary duties to the company, not individual shareholders, was upheld, and the "exceptional circumstances" required to deviate from this rule were not present.

The applicants, the daughter and son-in-law of the deceased, sought a declaration of their beneficial ownership in two properties that the deceased had transferred into joint tenancy with them for no consideration.

Prior to his death, the deceased unilaterally severed the joint tenancies and claimed the properties were held in trust for him.

The court found that at the time of the transfers, the deceased intended to make inter vivos gifts of the right of survivorship to save on probate fees.

The presumption of resulting trust was rebutted, and the applicants were declared to hold a two-thirds legal and beneficial interest in the properties.

The appellant, William Soroka, appealed the dismissal of his motions to set aside foreclosure judgments and default notations in three mortgage foreclosure actions.

The judgments were obtained in December 2014 and registered in April 2018, but Soroka moved to set them aside in October 2019, approximately five years after judgment.

The Court of Appeal upheld the motion judge's decision, finding no error in applying both the test for setting aside default judgments and relief against forfeiture.

The court agreed that the motions were not brought promptly and the appellant's explanation for delay was not credible.

The court also found no error in considering whether the appellant had an arguable defence on the merits, noting he never sought to convert the claims to judicial sales until the motions to set aside.

The appeal was dismissed, emphasizing that granting the relief would amount to a substantial windfall for the appellant and would not enhance the integrity of justice.

The Corporation of the Township of North Dumfries brought a motion for an interlocutory injunction to restrain Geil Style Enterprises Inc. and Jason Geil from continuing a large-scale fill importation business without a permit, in contravention of municipal bylaws.

The plaintiffs argued for a 'strong prima facie case' test for the injunction, but the court applied the 'serious question to be tried' standard, noting that municipalities enforcing bylaws are not required to demonstrate irreparable harm in the same way as private plaintiffs.

The court found the Township met the test, that the non-compliance was flagrant, and that the balance of convenience favoured the Township.

The interlocutory injunction was granted, effective March 18, 2022.

This costs endorsement follows a motion brought by House concerning the distribution of insurance proceeds, the application of the equitable doctrine of marshalling, and the garnishment of settlement funds.

The court had previously dismissed House's request for marshalling, ordered pro rata distribution of State Farm funds, and allowed House to garnish 20% of Baird's settlement.

Baird was deemed more successful than House on the garnishment issue and was entitled to costs.

The court awarded Baird $20,000 in partial indemnity costs, inclusive of HST and disbursements, but excluded costs for an affiant who did not act as counsel or make submissions.

This endorsement addresses costs for two intertwined actions.

The court determined costs following a substantial judgment in favour of the plaintiff in a main action and a successful defence against a slander action.

Substantial indemnity costs were awarded against the defendants in the main action due to fraudulent conduct and the inappropriate use of a secondary action as a "gag and chill" defence.

Costs were also awarded for the successful defence of the slander action, with a partial indemnity award granted to one defendant for their successful defence in the main action.

The appellant appealed a trial judgment dismissing her claim for support from the estate of her deceased spouse.

The appellant argued that a waiver of support clause in the marriage contract was contingent upon the matrimonial home being held in joint tenancy, and that when the home ceased to be so held, the waiver no longer applied.

The Court of Appeal affirmed the trial judge's decision, finding that two amendments to the marriage contract made clear that the home would be held in tenancy in common with certain rights to the appellant upon the respondent's death, and that neither amendment detracted from the waiver provision.

The court deferred to the trial judge's contractual interpretation and found no clearly identifiable error in law or palpable and overriding factual error.

This trial involved two consolidated actions: a debt action (C-705-17) by Alexander Michel against Franz Kramer, Gunther Kramer, and Spirit Financial Inc. for over $2 million in loans, and a slander action (C-728-15) by Franz Kramer, Christa Schmidt, and Gunther Kramer against Alexander Michel.

The court found a debtor/creditor relationship between Kramer and Michel, concluding that Michel's advances were personal demand loans with 6% interest.

The court rejected Kramer's claims of investment and found his explanations for losses to be fraudulent, attributing a disproportionate share of losses to Michel.

Judgment was granted against Franz Kramer and Spirit Financial Inc. for the outstanding loan amounts.

The debt action against Gunther Kramer was dismissed.

The slander action against Michel was also dismissed due to a lack of credible evidence linking Michel to the alleged harassment and threats, with the court finding it to be a tactic to thwart Michel's legitimate debt claim.

This motion concerned the distribution of insurance funds and the right to garnish a settlement following a motor vehicle accident.

The applicant, Tyler House, sought directions on the interpretation of the Insurance Act regarding priorities and entitlement to insurance monies, a declaration applying the equitable doctrine of marshalling to prioritize his claim, and confirmation of his right to garnish Donald Baird's settlement funds.

The court found that the doctrine of marshalling was not applicable, affirming the pro rata distribution of first-loss insurance funds under section 277 of the Insurance Act.

The court also interpreted ambiguities in Baird's settlement and determined that 20% of Baird's settlement funds, specifically from the income loss portion, were subject to garnishment, applying principles from the Wages Act.

The defendant was charged with driving a motor vehicle while holding or using a handheld telecommunications device contrary to section 78.1(1) of the Highway Traffic Act.

An officer observed the defendant holding an iPhone at a red light and believed she was using it to send text messages.

The defendant claimed she was using the device as a GPS system and was not touching the screen.

The court found that even accepting the defendant's version of events, the device was not securely mounted as required by Ontario Regulation 366/09, and therefore the defendant was guilty of the offense.

The appellant appealed a Small Claims Court judgment ordering him to pay $2,915.40 to the respondent roofing company for partial roof repairs.

The appellant, who was self-represented, argued that the trial judge was biased against him, erred in admitting certain photographs, and made incorrect factual findings regarding the cause of a roof leak.

The Superior Court of Justice dismissed the appeal, finding no reasonable apprehension of bias and no palpable and overriding errors in the trial judge's assessment of the evidence, noting that the appellant had chosen to only partially repair a roof that was in a deplorable condition.

Following the settlement of a construction dispute for $58,000, the plaintiffs sought costs and prejudgment interest.

The court reviewed the plaintiffs' bill of costs, noting the settlement was slightly more favourable than their pre-trial offer.

Applying the factors under the Rules of Civil Procedure and the Courts of Justice Act, the court awarded the plaintiffs $48,000 in costs on a partial indemnity basis, reducing the claimed amount to account for work related to a failed arbitration and proportionality to the settlement.

Prejudgment interest was also awarded at a rate of 4.8%, totaling $23,156.78.

The defendants pleaded guilty to multiple charges related to building a deck and hot tub without obtaining a building permit, in violation of the Building Code Act and City of Waterloo by-laws.

They failed to comply with orders to obtain a permit, remove the structures, and cease occupancy.

The court imposed a balanced sentencing package including a suspended sentence with one-year probation on the first count and fines of $500 on each of three counts for failure to comply with orders.

One count was stayed under the Kienapple principle.