David J. H. Jackson

The plaintiff brought a motion for contempt against the defendant Frank Fiorini for alleged breaches of court orders dated October 19 and November 10, 2010, related to the disclosure and non-removal of construction equipment.

The motion was initially brought in 2010, adjourned, struck in 2011, and resurrected in 2018.

The court dismissed the motion due to the plaintiff's seven-year delay, the plaintiff's prior indication that contempt had been purged, and the failure to prove the breach beyond a reasonable doubt.

The court emphasized that contempt motions are a last resort and should not be used merely to enforce judgments when other means have failed.

The replacement trustee in bankruptcy brought a motion for a declaration that it owned the bankrupt's leased office equipment and furniture free and clear.

The bankrupt had financed the equipment through leases secured by a collateral assignment of his life insurance policies.

After his death, the insurer paid the lessor from the death benefit, which the bankrupt's spouse and daughter (the beneficiaries) argued unjustly enriched the estate.

The court held that the rule in Ex parte James did not apply to give the beneficiaries a proprietary claim against the equipment, and granted the trustee's declaration, noting the beneficiaries could pursue other remedies if they suffered a loss.

An appeal concerning the interpretation of a term in an amended Agreement of Purchase and Sale.

The appellant challenged the application judge's interpretation of a contractual provision.

The Court of Appeal applied the deferential standard of review established in Creston Moly Corp. v. Sattva Capital Corp. and found no palpable and overriding error in the application judge's findings of fact or interpretation of the impugned provision.

The appeal was dismissed with costs awarded to the respondent.

This is a costs judgment following a dispute over the face value of a vendor take-back (VTB) mortgage, which was contingent on a development application that ultimately failed.

The plaintiff (mortgagor) successfully argued that the defendant (mortgagee) acted high-handedly and abused process by initiating Power of Sale proceedings for the full face value despite the known contingency, and by raising spurious allegations.

The court found the plaintiff entitled to costs, departing from a standard mortgage cost clause due to the defendant's conduct.

The plaintiff was awarded $50,000 for fees and $8,746.82 for disbursements, with the court noting some "over-lawyering" by the plaintiff's counsel but emphasizing the defendant's inappropriate behaviour.

The applicant purchaser and respondent vendor entered into an agreement of purchase and sale for a property intended for a townhouse development.

The agreement included a vendor take back mortgage with a clause reducing the principal amount if the number of approved units was less than the originally planned 18, subject to a $250,000 floor.

The development application faced opposition and the number of units was reduced.

The court was asked to interpret the mortgage terms.

The court found the reduction clause enforceable and not ambiguous, rejecting the vendor's argument that the entire mortgage amount was due if the original application failed.

The court held that the mortgage principal would be reduced according to the formula, subject to the $250,000 floor.

The appellants appealed a trial decision finding that a termination clause in an Independent Dealer Agreement was void as against the respondent trustee in bankruptcy.

The clause relieved the appellants of their obligation to pay unpaid commissions upon termination of the agreement.

The Court of Appeal dismissed the appeal, extending the principle from CIBC v. Bramalea to hold that the clause was unenforceable because it provided a windfall to one creditor upon insolvency, violating the public policy of equitable and fair distribution among unsecured creditors.

The appellants appealed a trial judgment that pierced the corporate veil and set aside a transaction under s. 2 of the Fraudulent Conveyance Act.

The respondents cross-appealed regarding $8,000 taken by the appellant following the deceased's death.

The Court of Appeal dismissed the appeal, finding the trial judge applied the correct test from Wildman v. Wildman.

The Court allowed the cross-appeal, noting the appellant admitted to taking the $8,000, which was an asset of the estate.

Costs of $15,000 were awarded to the respondents.