David Z. Seifer

Following the vacating of an ex parte order due to an exclusive jurisdiction clause, the respondent sought costs of the motion.

The court awarded costs on a partial indemnity basis, declining to award a higher scale as the applicant's conduct was not reprehensible.

The court allowed recovery for the value of work performed by the respondent's US counsel in drafting affidavits, noting that while foreign counsel cannot charge legal fees in Ontario, a fair and reasonable amount for the preparation work should be indemnified to avoid a windfall to the applicant.

Costs were fixed at $80,000 all-inclusive.

The court-appointed Receiver sought approval for the sale of a property owned by the Debtor, 253 Queen Street Inc., and an Administration Order.

The sale was supported by secured creditors Homedale-Eagle Corporation and Sky Mortgage Corporation but opposed by the Debtor and its equity holders.

The opposing parties argued the purchase price was too low, the environmental indemnity was not assumed by the purchaser, and their beneficial interest in the property was not recognized.

The court applied the Soundair principles for approving sales in receivership, finding the Receiver acted providently and fairly.

The court rejected the claims of beneficial ownership based on trust law and the Land Titles Act, affirming the priority of registered mortgages over unregistered beneficial interests.

The Receiver's motion for approval of the sale and the Administration Order was granted.

This motion for summary judgment concerned a dispute over success fees owed by mdf commerce inc. ("mdf") to Echelon Wealth Partners Inc. ("Echelon"), a financial advisor.

Echelon was engaged by mdf to source credit facilities for strategic initiatives and acquisitions.

After Echelon sourced an initial facility in 2020, mdf pursued a large acquisition in 2021, securing additional credit facilities and temporary bridge financing from the same lender (BNS) without Echelon's direct involvement, but while Echelon's advisory agreement was still in effect.

Echelon invoiced mdf for a success fee on these new facilities, arguing they constituted a "Financing Transaction" or "Related Transaction" under the agreement, and that the fees were protected post-expiry.

The court granted Echelon's motion for summary judgment, finding that the 2021 credit facilities were indeed a "Financing Transaction" and a "related transaction" as defined by the agreement, and that the protected fee clause applied.

The court also determined that the temporary bridge financing, though not drawn upon, qualified as "committed bank financing" for which a success fee was payable. mdf's cross-motion for summary judgment dismissing the claim was dismissed.

The Moving Parties brought a jurisdiction motion seeking to dismiss or stay Senvion's Ontario action and motion for lack of jurisdiction or on the basis of forum non conveniens, arguing that Quebec was the more appropriate forum.

Senvion's proceedings concerned an alleged breach of a Companies’ Creditors Arrangement Act (CCAA) stay order issued by the Ontario court, specifically regarding the draw down of a letter of credit.

The court dismissed the Moving Parties' motion, holding that the Ontario court, as the issuer of the CCAA recognition orders and stay, was the appropriate forum to determine whether its order had been breached, irrespective of contractual choice of law or forum clauses.

The court explicitly stated it was not making a determination on the merits of the stay violation.

The applicant, Tacora Resources Inc., sought approval for an Amended and Restated Debtor in Possession (DIP) financing agreement with Cargill and an extension of the CCAA Stay Period.

The Ad Hoc Group of Noteholders (AHG) opposed the Cargill DIP, proposing an alternative and seeking renegotiation of terms, including an exit fee, legal costs, and the "Offtake Condition" related to a pre-existing commercial agreement with Cargill.

The court approved the Cargill DIP and extended the stay, finding the Cargill agreement offered greater short-term stability and liquidity, was recommended by the Monitor, and did not materially prejudice other stakeholders beyond what already existed due to the pre-CCAA Offtake Agreement.

The court held that the DIP approval motion was not the appropriate forum to address the enforceability or commercial reasonableness of the Offtake Agreement itself.

The Applicants, Roof Tile Management Group Inc. and Roof Tile Management Inc., brought an application seeking declaratory relief and other non-monetary orders, along with a motion to amend their Notice of Application to seek a reference for damages.

The Respondents, Henry Forget and 2149220 Ontario Inc., opposed both the amendment and the application as the proper form of proceeding, arguing that the case involved highly contested facts requiring an action.

The court dismissed the Applicants' motion to amend, finding it would improperly bifurcate the proceeding and cause procedural injustice.

The court also converted the application into an action under Rule 38.10, determining that an application was not the appropriate forum to resolve the significant factual disputes concerning liability and damages.

The Pointer Group Incorporated brought a motion for security for costs of the appeal and the underlying action and anti-SLAPP motion, pursuant to Rule 61.06(1)(a) and (c) of the Rules of Civil Procedure.

The moving party argued the appeal was frivolous and vexatious and that the appellant, Dr. Kulvinder Kaur Gill, had insufficient assets.

The court dismissed the motion, finding that the moving party failed to demonstrate that the appeal was both frivolous and vexatious, or that Dr. Gill had insufficient assets.

The court also found no "other good reason" to order security for costs, as the appeal presented arguable errors of law and there was no indication of vexatious conduct or difficulty in collecting costs from Dr. Gill.

Dr. Gill was awarded partial indemnity costs of $5,000 for the motion.

The applicant, Romspen Investment Corporation, sought the appointment of a receiver over the respondents' property and approval of an agreement of purchase and sale (the "Times Transaction").

A fifth-ranking mortgagee, Sow Capital Ontario Limited, brought a competing motion to approve its own power of sale transaction (the "281 Transaction") and sought to suspend the receiver's powers.

The respondents opposed both sale transactions, arguing for a receiver-conducted auction.

The court appointed Ernst & Young Inc. as receiver, approved the Times Transaction, and granted a sealing order, finding that the Times Transaction offered the best outcome for all stakeholders and that a further sales process was unnecessary.

The court dismissed Sow's motion to suspend receivership powers and the respondents' request for an auction or a reservation of rights to claim improvident sale.

The appellant, Bon-Star Inc., appealed an order declaring its mortgage a closed mortgage with no prepayment privileges and requiring compensation for lost interest upon prepayment.

The Court of Appeal allowed the appeal in part, varying the declarations to clarify that prepayment privileges were absent in favour of the mortgagor and that compensation for lost interest was required for the specific transaction where the "Due on Sale" clause was not invoked.

The court found the application judge erred in making a broad declaration regarding prepayment without compensation, as specific mortgage terms like the "Due on Sale" clause could alter prepayment conditions.

The court also upheld the application judge's discretionary decisions regarding adjournments and counsel appointment.

The plaintiff brought a motion seeking further disclosure from the defendant, including an unredacted bonus compensation document and details of expenses deducted from the bonus pool, in a wrongful dismissal action concerning unpaid bonuses.

The defendant had redacted information for relevance and commercial sensitivity.

The court dismissed the plaintiff's motion, finding that the redacted information was not relevant to the pleaded issues at this stage and that its disclosure would cause significant harm to the defendant due to its sensitive business nature and private employee information.

The court noted that the plaintiff could re-bring the motion if further evidence from discovery established relevance.

The defendants were successful in obtaining a temporary stay of the Ontario action and sought costs of the motion on a partial indemnity scale.

The plaintiff argued that costs should follow the cause and be awarded upon final disposition, or that the parties should bear their own costs because the defendants were only partially successful.

The court rejected the plaintiff's arguments, finding the defendants were the successful parties and entitled to costs payable forthwith.

Costs were fixed at $23,687.55 on a partial indemnity scale.

The defendant in a defamation action brought under the Simplified Procedure delivered a notice of motion to dismiss the claim as a SLAPP under s. 137.1 of the Courts of Justice Act.

The court addressed the scheduling of the motion, noting the routine disregard for the mandatory 60-day time limit under s. 137.2(2).

The court enforced the 60-day limit, scheduling the motion accordingly despite court backlogs, and ruled that the statutory allowance for cross-examination on anti-SLAPP motions overrides the general prohibition against cross-examination in Simplified Procedure actions.

The applicant mortgagee brought an application for declarations that a commercial mortgage registered against the respondent's property was a closed mortgage with no prepayment privilege, that it was entitled to all lost interest to maturity upon any early prepayment, and that forced insurance coverage costs were recoverable.

The respondent corporate mortgagor argued it should be entitled to pay out the mortgage upon a sale without paying interest to maturity.

The court granted the declarations, finding that the mortgage terms clearly prohibited early prepayment and that corporate borrowers do not have a statutory right to redeem a mortgage with only a three-month interest penalty under the Mortgages Act.

The court also found the insurance costs were properly recoverable under the mortgage terms.

The moving parties, Thomas Patrick Farrell and The Midas Investment Corporation, appealed an order dismissing their action concerning the validity of two mortgages and sought a stay of the declaration of validity and enforcement of the mortgages pending the outcome of the appeal.

The court applied the three-part RJR-MacDonald test for stays pending appeal.

While a serious issue was found to exist (though barely), the court determined there would be no irreparable harm to the moving parties and that the balance of convenience did not favour granting a stay.

The motion for a stay was dismissed.

This is a costs endorsement following an appeal.

The appellant, Yong Yeow Tan, was ordered to pay costs to the respondents, C & K Mortgage Services Inc. and the Receiver for Camilla Court Homes Inc. and Elite Homes Inc. C & K Mortgage Services Inc. was awarded $20,000, and the Receiver was awarded $7,500, inclusive of taxes and disbursements.

Jereemy Tan, the moving party, sought an extension of time to file a notice of appeal against a Superior Court decision that authorized a Receiver to disclaim an agreement of purchase and sale for a property.

The moving party's counsel inadvertently missed the 10-day appeal deadline, believing it was 30 days.

The Court of Appeal granted the extension, finding the delay was short and excusable, prejudice to respondents negligible, and the proposed appeal met the low threshold for merit.

The court also determined the appeal was "as of right" under sections 193(b) and (c) of the Bankruptcy and Insolvency Act, as the decision could affect other similar cases and involved property exceeding $10,000 in value.

The moving party purchaser entered into an agreement of purchase and sale for a pre-construction condominium and paid a $500,000 deposit, $400,000 of which went directly to the developer.

The developer defaulted on its first mortgage, and a receiver was appointed.

The receiver sought to disclaim the purchaser's agreement.

The purchaser brought a motion to compel the receiver to complete the sale, arguing he had an equitable interest in the property.

The court dismissed the motion, finding that the purchaser's interest was contractually subordinate to the first mortgagee and that the equities did not justify overriding the mortgagee's legal priority.