David A. Seed

The Canadian Imperial Bank of Commerce (CIBC) initiated receivership proceedings against 1340182 Ontario Limited and Kazembe & Associates Professional Corporation.

The court-appointed Receiver, MNP Ltd., sought approval of its second report, fees, and authorization to assign 1340182 Ontario Limited into bankruptcy, and to distribute proceeds from the sale of a property.

A key dispute arose regarding the priority of mortgages on the property, specifically between Arthur Bryan, 923944 Ontario Ltd., and CIBC.

Bryan claimed his earlier mortgage was fraudulently discharged and sought declaratory relief to restore its first-ranking priority.

The court dismissed Bryan's cross-motion, finding that even if the discharge was fraudulent, the subsequent mortgages of 923944 Ontario Ltd. and CIBC were valid and enforceable under the Land Titles Act, as they were not fraudulent instruments and the mortgagees had no actual or imputed knowledge of fraud.

The court approved the Receiver's report and authorized distribution according to the registered priorities (923944 Ontario Ltd. first, CIBC second).

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellant, Assignment Credit Corp., was ordered to pay costs to several respondents (MCAP Financial Corporation, Dorr Capital Corporation, and Cherniak Law Professional Corporation).

The court rejected the appellant's argument that prior costs agreements should stand, as they were made before the appellant's non-disclosure of a material fact (that the Mesbur Judgment was obtained on consent) was revealed.

This non-disclosure, which impacted the second issue of the appeal, justified an elevated costs award on a solicitor-client basis for the affected respondents.

The 167 respondents were denied costs due to their own failure to disclose the consent judgment and their underlying financial obligations.

This appeal concerned the priority of various creditors in a garnishment hearing involving payments owed by the City of St. Catharines and Region of Niagara to 1671379 Ontario Inc. under a Brownfield Tax Increment Based Incentive Grant Program Agreement (BTIG).

The primary dispute was between MCAP Financial Corporation, holding a perfected General Security Agreement (GSA), and Assignment Credit Corp. (ACC), asserting priority based on an assigned consent judgment (Mesbur Judgment).

The Court of Appeal affirmed the motion judge's finding that MCAP's perfected GSA had priority for its shortfall judgment over ACC's claim, finding no inconsistency in MCAP's position.

However, the court remitted the issue of priorities among ACC and other unsecured judgment creditors to the motion judge, as it was revealed post-hearing that the Mesbur Judgment was a consent judgment, a fact not disclosed to the motion judge or other creditors, raising new legal arguments regarding the Personal Property Security Act and the Assignments and Preferences Act.

Various creditors of 1671379 Ontario Inc. and Manuel Elkind brought motions to determine priority status for garnishment payments owed by the City of St. Catharines and Region of Niagara under a Brownfield Tax Increment Based Incentive Grant Program Agreement (BTIG).

The primary dispute was between MCAP Financial Corporation, which held a registered and perfected security interest under the Personal Property Security Act (PPSA), and Assignment Credit Corp. (ACC), which claimed priority based on an assignment of a prior judgment.

The court found that MCAP's security interest, including the proceeds of the BTIG, maintained its priority status despite being reduced to a shortfall judgment.

The court dismissed ACC's claim for priority, finding that its assigned interest was subject to MCAP's prior perfected security and that ACC's claim should be limited to $400,000 as per a "Side Deal" in a previous endorsement.

This is a costs endorsement following two separate motions in a combined family law and oppression remedy proceeding.

The respondent was successful on a motion to stay the corporate claims in favour of arbitration, while the applicant was successful on a motion for financial disclosure.

The court found both parties engaged in some unreasonable conduct and made no formal offers to settle that met the rules.

The court awarded the respondent $9,151.32 for the stay motion and the applicant $12,774.65 for the disclosure motion, resulting in a net payment of $3,623.33 to the applicant.

The defendant, Nima Priyeshakbari, brought a motion to strike portions of the plaintiff's claim, which asserted allegations of fraud, conspiracy, fraudulent conveyance, and insufficient particularity regarding an interest in land and documents/conversations.

The plaintiff alleged that the defendants conspired to unlawfully convert a property in which she had invested, selling it below market value to deprive her of her investment.

The court applied the "plain and obvious" test for striking pleadings, accepting the plaintiff's alleged facts as true unless patently ridiculous.

The court found that the plaintiff's claim met the necessary particularity requirements for fraud and conspiracy, noting that knowledge can be alleged as a fact without pleading circumstances.

The court also clarified that the Land Titles Act does not ban trusts but rather defines how third parties deal with registered owners.

The motion to strike was dismissed.

This application concerned the passing of accounts and seeking compensation by Linda and Ted Austin, who served as Powers of Attorney for Property and Personal Care for Isabel and Wayne Daniel.

The Daniels, an elderly couple with no next of kin, received extensive care and financial management from the Austins for over 20 years.

Following Wayne Daniel's passing and Isabel Daniel's move to assisted care, Isabel suggested the Austins seek compensation.

The court approved compensation for administering Wayne Daniel's estate, statutory compensation as Powers of Attorney for Property, and compensation for personal care services, totaling $757,659.87, along with legal fees.

Following a successful application by a condominium corporation to enforce its declaration against an offending unit owner and its tenants, the court determined the appropriate scale and quantum of costs.

The court awarded the applicant full indemnity costs of $24,771.93, noting that section 134(5) of the Condominium Act and the condominium's declaration contemplate full recovery of enforcement costs to protect innocent unit owners.

A supporting respondent, who gathered evidence of the breach to protect his exclusive use rights, was awarded partial indemnity costs of $15,000 against the offending respondents.

This endorsement addresses the costs of a motion where default judgment obtained by the plaintiff, Western Steel and Tube Ltd., against the defendants, including Canadian Tire Corporation, Limited, was set aside.

The court found the plaintiff primarily responsible for the need for Canadian Tire's motion due to procedural misconduct, including failure to provide notice of the default trial and to make full disclosure of material facts.

Despite the plaintiff's arguments regarding the default of Jiangsu Sainty Sumex Tools Corp. Ltd., the court ordered the plaintiff to pay Canadian Tire $75,000 in all-inclusive costs, emphasizing the plaintiff's inappropriate conduct and refusal to accept reasonable settlement offers.

No costs were awarded for or against Jiangsu Sainty Sumex Tools Corp. Ltd.

The defendants, Jiangsu Sainty Sumex Tools Corp. Ltd. and Canadian Tire Corporation, Limited, moved to set aside a default judgment granted against Jiangsu Sainty Sumex and its prior noting in default.

Canadian Tire also sought to set aside or vary the judgment, particularly its in rem declarations concerning intellectual property rights, arguing they were non-binding on Canadian Tire.

The default judgment was obtained by the plaintiff without notice to counsel for either defendant and without full disclosure of material facts to the court, including a Trademark Opposition Board decision against the plaintiff's claimed trademark, an expired patent, and ongoing discussions with the defaulting defendant's counsel.

The court found the plaintiff's conduct inappropriate and set aside the default judgment due to lack of notice and non-disclosure.

The noting in default for Jiangsu Sainty Sumex was also set aside, conditional on the defendant posting security for damages and costs, providing an affidavit of documents, and producing a witness for discovery, to ensure the matter proceeds to a full trial on the merits.

The Applicant sought interim custody, child and spousal support, release of matrimonial home proceeds, and disclosure.

The Respondent sought temporary sole or shared custody, primary residence in Florida, supervised access for the Applicant, and a s. 30 assessment.

The court granted the Applicant temporary sole custody, established a parenting schedule allowing the child to travel to Florida one week per month, ordered the Respondent to pay $75,000 monthly in temporary child and spousal support, and released the net proceeds of the matrimonial home to the Applicant.

The Respondent's motion for a s. 30 assessment was dismissed without prejudice, and his request for a sealing order was adjourned for further submissions.

The court also ordered the Respondent to provide comprehensive financial disclosure.

The applicant, Julia Michelle Bolland, brought a motion seeking a declaration that Ontario has jurisdiction over her family law proceeding, including divorce, custody, access, child support, spousal support, and equalization of net family property.

The respondent, David Drew Bolland, opposed this and brought a cross-motion to dismiss Julia's application, arguing she did not meet the 12-month residency requirement for divorce in Ontario and that Florida was the appropriate forum.

The court found that Julia was ordinarily resident in Ontario, that the child Lincoln's habitual residence was Ontario, and that Ontario had a real and substantial connection to the support and property claims.

The respondent failed to demonstrate that Florida was a more appropriate forum under forum non conveniens principles.

The applicant's motion was granted, and the respondent's motion was dismissed.

A costs decision following an application in bankruptcy proceedings concerning the continuing validity of an absolute discharge order under the Bankruptcy and Insolvency Act.

The successful party sought substantial indemnity costs, while the respondents argued that the conduct of opposing counsel warranted costs in their favour or that the claimed costs were excessive.

The court rejected allegations that counsel had improperly accused opposing counsel of fraud on the court and found no basis to deny costs to the successful party.

Although the applicant was entitled to costs, the court declined to award substantial indemnity costs given the novel circumstances and the sympathetic position of the respondent.

The court fixed partial indemnity costs at $14,000 on an all-inclusive basis.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action relying on deemed admissions arising from the defendant’s failure to respond to a Request to Admit.

The defendant brought a cross‑motion seeking leave to withdraw the deemed admissions and an extension of time to respond, arguing the failure was inadvertent because the company had been represented by a layperson unfamiliar with the Rules of Civil Procedure.

The court applied the test governing withdrawal of admissions and accepted that the failure was inadvertent and that any prejudice could be compensated in costs.

However, the court held that the defendant failed to demonstrate a genuine issue requiring a trial.

Summary judgment was granted to the plaintiff for damages equivalent to three months’ notice.