David M. Steele

The appellants, Jordan Rudiger Zukowski and Rudi Heinz Edwin Zukowski, appealed an order granting summary judgment to the respondent, MarshallZehr Group Inc., regarding the enforceability of a personal guarantee for a project financing loan.

The Court of Appeal dismissed the appeal, finding no error in the motion judge’s refusal to permit cross-examination of the respondent’s representative and no reviewable error in the finding that the respondent did not act in bad faith.

The court held that the issues raised were properly resolved on the record and that the personal guarantee was valid and enforceable.

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.

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.

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.

Following a trial where the plaintiff's claims for damages were entirely dismissed, the successful defendant sought partial indemnity costs.

The plaintiff argued that each party should bear its own costs.

The court found the defendant's claim for costs to be fair and reasonable, ordering the plaintiff to pay $165,630.83 inclusive of disbursements and HST.

The plaintiff, Willowbrook Nurseries Inc., sued the Royal Bank of Canada for breach of contract and bad faith, alleging the bank failed to provide reasonable notice of changes to its lending arrangements and restricted financing.

Willowbrook claimed an overarching agreement for continued credit, including temporary accommodation requests (TARs), which RBC abruptly ceased.

The court found that the relationship was contractual, not fiduciary, and while RBC's actions might have been financially unwise, they were not in bad faith.

The bank exercised its contractual entitlements and provided reasonable notice for Willowbrook to seek alternative financing.

The plaintiff's claims for specific, goodwill, productivity, general, and punitive damages were dismissed.

The plaintiff, a vulnerable widow with limited financial knowledge, sued the defendant for civil fraud after losing $250,000 USD of her life insurance proceeds in speculative options trading through the defendant's account.

The defendant, a computer-literate individual with investment knowledge, had promised the plaintiff's dying husband he would look after her and her children.

The court found the defendant committed civil fraud by taking advantage of the plaintiff's vulnerability and making reckless trades, despite his claims that the plaintiff directed the trades.

The court awarded compensatory damages of $192,000 USD and punitive damages of $25,000 CAD.

Following dismissal of a trustee’s motion seeking directions to terminate certain condominium purchase agreements, the court addressed costs.

The purchasers sought costs against the trustee or alternatively against mortgagees who supported the trustee’s position.

The court held that although the mortgagees were not formal parties to the motion, they actively participated and had a direct financial interest in the outcome, making it appropriate to hold them responsible for costs.

The court also considered principles governing costs for self-represented litigants and limited recovery to proven disbursements where no foregone remunerative activity was demonstrated.

Costs were awarded to the purchasers and made payable jointly and severally by the mortgagees.

The court-appointed Trustee of an insolvent condominium development brought a motion for advice and directions, seeking permission to terminate pre-sale purchase agreements for buyers who had purchased two parking units, due to a shortage of parking spaces in the building.

The Trustee proposed that these buyers relinquish one parking space for a price reduction, or face termination of their agreements.

The court applied the test of balancing the equitable considerations of all stakeholders.

Finding that the mortgagees had accepted the risk of the parking shortage and that the purchasers would suffer significant financial hardship and loss of equity if their agreements were terminated, the court dismissed the Trustee's motion.

A contractor sued homeowners for unpaid renovation invoices and sought to enforce a construction lien.

The court held the lien was not preserved within the statutory time under the Construction Lien Act and ordered it discharged.

However, the court found the renovation agreement was a time‑and‑materials contract rather than a fixed‑price contract as alleged by the homeowners, relying on the written contract and the parties’ subsequent conduct.

Most alleged deficiencies and overbilling claims were rejected, with only minor credits allowed.

Judgment was granted against one homeowner for the outstanding balance with prejudgment interest, while the claim against the other homeowner and the lien claim were dismissed.

The defendants moved for summary judgment dismissing the plaintiff’s claim arising from alleged breach of a non‑competition agreement and related fiduciary duties, or alternatively partial summary judgment limiting damages.

The dispute involved whether the defendant employee had signed a non‑competition agreement, whether such an agreement would be enforceable without explicit geographic or activity limits, and whether the defendant owed fiduciary duties to the plaintiff.

The court found that significant factual disputes and credibility issues, including allegations the defendant competed with the plaintiff while still employed and interfered with a business relationship, required a full trial.

Summary judgment was therefore inappropriate.

The motion was dismissed except that the defendants were granted leave to amend their statement of defence.

The defendant brought a motion for summary judgment seeking dismissal of the action against her.

The plaintiff had advanced $250,000 to a co-defendant for investment purposes and alleged losses after the funds were traded and lost.

The moving defendant was a joint holder of a bank account through which some of the funds briefly passed, but there was no evidence she participated in the transfers, trading activity, or received any benefit from the funds.

The court applied the summary judgment framework under Rule 20.04 and the “full appreciation test” from Combined Air Mechanical Services v. Flesch.

Finding no evidence supporting liability or a viable tracing claim, and determining the Fraudulent Conveyances Act claim was premature, the court held there was no genuine issue requiring a trial and dismissed the action against the moving defendant.