David A. Brooker

The Court of Appeal for Ontario dismissed the appeal by Judith Lorraine Farrage and Edmund Farrage regarding the accounting and proceeds from three mortgaged properties in Kitchener, Ontario.

The application judge’s acceptance of the respondent’s expert calculations, subject to a property tax adjustment, was upheld.

The Court found no error in the application judge’s approach to interest calculations or in her assessment of damages, and awarded costs of $7,500 to the respondent.

The Court of Appeal for Ontario dismissed the appeal of Facilitate Settlement Corporation, Kai Wu, and Jane Doe from a judgment terminating their residential tenancy and awarding the landlords, Ly Innovative Group Inc. and Meizhang Zhou, over $300,000 in rental arrears and $100,000 in punitive damages.

The appellants argued that the motion judge erred by refusing to sign a draft order reflecting a settlement, failing to recuse himself, and displaying bias.

The Court found no error in the motion judge’s exercise of discretion, no reasonable apprehension of bias, and admitted fresh evidence but found it did not affect the outcome.

The appellant appealed a judgment enforcing a settlement agreement reached in open court regarding an estate and property dispute.

He argued the settlement should be set aside due to unconscionability, mutual mistake, and misrepresentation, claiming he did not understand the terms and was tricked by his former counsel.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's application of the test for unconscionability and concluding there was ample evidence that the appellant, who was represented by counsel, understood and agreed to the settlement.

Dalpha Technologies Inc. brought an application seeking an accounting and payment from Judith Lorraine Farrage and Edmund Farrage, who had taken possession of properties under a vendor-take-back mortgage after default.

The primary issues were the accounting of rental income and expenses, the calculation of the mortgage debt, and Edmund Farrage's personal liability.

The court dismissed the application against Edmund Farrage, finding no basis for his liability.

For Judith Farrage, the court accepted Dalpha's expert's accounting methodology, drawing an adverse inference against Ms. Farrage due to her failure to provide complete financial documentation.

The court ordered Ms. Farrage to pay Dalpha a sum to be recalculated to include certain property tax arrears, with Dalpha also entitled to pre- and post-judgment interest.

This appeal arose from a failed commercial real estate transaction where the appellants (buyers) failed to close and alleged fundamental breaches by the respondent (seller).

The motion judge granted partial summary judgment on liability in favour of the seller.

The Court of Appeal dismissed the appellants' motion for fresh evidence and their appeal, affirming the motion judge's finding that the alleged breaches by the seller were not fundamental and that the buyers had breached the agreement by failing to close.

This decision addresses the plaintiffs' request for prejudgment interest following a default judgment.

The court rejected the plaintiffs' request for interest from 2011 until the date of judgment, finding that the plaintiffs' significant delay in seeking default judgment made it unfair to award interest for the entire period.

Exercising discretion under Subsection 130(1) of the Courts of Justice Act, the court awarded prejudgment interest only from the contract date (March 8, 2011) until the end of 2014, calculating the total interest at $22,246.21.

Post-judgment interest was ordered to run from the date of the judgment.

The plaintiffs brought a motion for default judgment against the defendants for fraudulent misrepresentation in the sale of a business.

The deceased purchaser relied on false financial statements and inventory representations provided by the defendants, leading to the business's failure and her subsequent suicide.

The court found the defendants liable based on deemed admissions and expert evidence, awarding $448,474 in damages and $45,000 in costs.

This motion concerned the enforcement of a settlement agreement reached in open court regarding three complex estate applications.

The respondent, David Chong, sought to resile from the settlement, claiming duress, lack of comprehension, and fraudulent misrepresentation, and arguing the terms were unconscionable.

The court found David's reasons for resiling contradictory and uncorroborated, particularly in light of his former counsel's evidence.

The court dismissed the respondent's arguments, finding no inequality in bargaining power, no duress, and no fraudulent misrepresentation.

The court ordered the immediate sale of the property as per the settlement terms and fixed costs against the respondent.

The applicant sought to suspend the appointment of the primary respondent as Estate Trustee and appoint an Estate Trustee During Litigation (ETDL), alleging conflicts of interest and mismanagement regarding the sale of an estate-owned property.

The primary respondent, supported by the co-respondent, opposed the application, arguing her actions were in the best interest of the estate and that the applicant was in conflict.

The court dismissed the application for an ETDL, finding no clear evidence to warrant the removal of the Estate Trustee, and instead ordered the Estate Trustee to proceed with listing the property for sale on the open market and to commence an application to pass her accounts.

The Court of Appeal for Ontario heard two motions brought by the respondent, Maranello Sports Inc. o/a Ferrari of Ontario.

The first motion sought to dismiss or stay an underlying appeal and set aside or vary a consent order.

The second motion sought to set aside a Registrar's order that permitted Ronald Hitti to continue the interest of co-appellant 285 Spadina SPV Inc. in the appeal.

The court granted both motions, finding that Hitti lacked authority to act on behalf of 285 Spadina SPV Inc. due to a prior Superior Court order.

Consequently, the appeal was deemed moot and without merit.

The consent order was set aside under Rule 59.06(2)(a) of the Rules of Civil Procedure due to Hitti's fraudulent concealment of the February 2023 Order.

The appeal was dismissed, and costs were awarded to the respondent.

The plaintiff mortgagee moved for default judgment against the defendant mortgagor for the balance due under a mortgage, including renewal and administrative fees.

The defendant had been noted in default after failing to deliver a statement of defence.

The registrar had previously declined to sign default judgment because of the inclusion of renewal and administrative fees.

The court found that the fees were referenced in the mortgage terms and allowed them, granting default judgment for possession, the mortgage balance, and costs.

The plaintiff brought a motion under Rule 45.02 for an order requiring the defendant to pay $180,000 into court from the proceeds of a property sale, pending the final disposition of the action.

The parties had previously entered into a joint venture to invest in real estate, and the plaintiff claimed a one-third interest in the proceeds based on a trust agreement.

The defendant argued the trust agreement was superseded by a subsequent agreement.

The court found that the plaintiff met the three-part test for an order under Rule 45.02, as there was a specific fund, a serious issue to be tried regarding the claim to the fund, and the balance of convenience favoured granting the relief to prevent dissipation of the funds.

The motion was granted.

The applicant sought to enforce a settlement agreement regarding the distribution of a deceased's estate, specifically concerning a life lease occupancy agreement.

The respondent argued that no formal acceptance occurred, his lawyer acted without full instructions, and an essential term (appraisal) was missing.

The court found that a binding settlement was reached by counsel with apparent authority and that an appraisal was not an essential term.

The court enforced the settlement, finding no real risk of clear injustice, and awarded costs to the applicant.

The plaintiff sought partial summary judgment against two corporate defendants for $180,054.08, alleging conversion and fraud related to a power of sale and a second mortgage.

The court dismissed the motion, finding that there was insufficient evidence to determine the exact amounts owing to the second mortgagee or the secured amount of her assigned mortgage.

The court emphasized that a complete record and full accounting were necessary, and partial summary judgment would not avoid a full trial given the preliminary stage of the action and other related proceedings.

The applicant sought leave under Rule 39.02(2) of the Rules of Civil Procedure to file additional affidavit materials for a pending partial summary judgment motion, after cross-examining the respondents' affiant.

The court dismissed the motion, finding that the applicant failed to provide a satisfactory explanation for not including the evidence initially.

The court emphasized that Rule 39.02(2) is not intended to correct deficiencies highlighted by cross-examination or to bolster a case due to an unexpected adjournment, and that parties are obliged to put their best case forward before cross-examination.

The appellant appealed an order of the Superior Court of Justice dated October 13, 2015.

The Court of Appeal found that the judge below articulated the correct legal principles and made findings of fact and mixed fact and law that were fully supported by the record.

The court was not persuaded by the appellant's arguments and dismissed the appeal.

The respondent was awarded costs in the amount of $9,000, to be deducted from the appellant's entitlement to funds held in trust by respondent's counsel.