Dennis Van Sickle

The moving party sought to set aside on consent a trial judgment declaring that it was not a bona fide purchaser without notice of a residential property.

The trial judge had made significant negative credibility findings against witnesses called on behalf of the moving party and its predecessor in title.

The Court of Appeal refused to allow the appeal on consent, holding that courts cannot set aside judgments based solely on party agreement without considering whether doing so would be appropriate in light of the law and facts, and whether it would bring the administration of justice into disrepute.

The court found that setting aside the judgment, which incorporated findings of misconduct, would undermine the administration of justice.

The Court of Appeal for Ontario dismissed the appeal by Gurnam Multani and Surjit Multani from the orders of Justice William S. Chalmers.

The appellants had signed forbearance agreements acknowledging the amounts owing under several loans from Dramel Limited.

The court found no error in the motion judge’s reliance on the forbearance agreements to confirm the amounts outstanding and held that the fees charged did not contravene the Interest Act.

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

The appellant sought to appeal an order resulting from a reference under Rule 54 of the Rules of Civil Procedure directly to the Court of Appeal.

The respondent moved to quash the appeal for lack of jurisdiction.

The Court of Appeal granted the motion to quash, holding that there is no direct right of appeal from a reference order; a dissatisfied party must first exhaust the remedies provided under Rule 54, such as opposing confirmation of the report in the Superior Court, before appealing to the Court of Appeal.

The respondent Yelka Kacin sought $10,000 in costs after successfully moving for directions and appointment of an estate trustee.

The applicant Martina Kacin agreed to costs but argued the quantum was excessive.

The court, applying Rule 57.01(1) of the Rules of Civil Procedure and s. 131(1) of the Courts of Justice Act, found the respondent's counsel's billings largely reasonable, reducing "argument" hours from 12 to 6.

The court awarded fixed costs of $9,200, with $5,000 payable by the applicant within 30 days and the remaining $4,200 to be deducted from the applicant's share of the estate.

This case concerns an application by Kelly Martin to set aside the sale of her home following a default judgment for foreclosure.

Martin had lost her home due to a missed $650 mortgage payment and subsequent actions by the mortgagee, 11037315 Canada Inc. (110), and the purchaser, 2670082 Ontario Corp. (267).

The Court of Appeal had previously set aside the default judgment but ordered a trial of an issue to determine if 267 was a bona fide purchaser for value without actual notice that Martin occupied the property and had a potential claim to set aside the default judgment.

The court found that 267 was not a bona fide purchaser, as its principal (Mangal) and solicitor (Dhillon) had actual notice of Martin's occupancy and potential claim, evidenced by the rapid, below-market sale, the prior aborted sale to another entity, and defects in the foreclosure process.

Consequently, the sale of the property to 267 was set aside.

This motion sought directions to advance an estate matter concerning a lost will.

The applicant, a daughter of the deceased, sought to probate a copy of a 2011 will naming her as sole beneficiary.

The respondents, the deceased's other two children, opposed, relying on the presumption that the lost original will was destroyed with intent to revoke.

The court was asked to determine the issues for a merits hearing, whether an Estate Trustee should be appointed, and the process for document production.

The court found that the key issues for the merits hearing were tracing possession of the will and rebutting the presumption of destruction.

It ordered the appointment of an independent Estate Trustee during litigation and mediator, citing family conflict and the need for neutral management of the estate and productions.

The court also established a specific, managed process for document production, declining the applicant's request for broad, blanket orders.

The respondent corporation, through its self-represented principal, brought a motion seeking the recusal of the judge for bias or a reasonable apprehension of bias, or alternatively, an adjournment of the reference ordered by the Court of Appeal.

The motion was based on the judge's conduct during the trial of an issue, including an inquiry into whether the principal had complied with a production order.

The court dismissed the motion, finding no evidence of bias and that the production order and subsequent inquiries were justified.

The court then proceeded with the reference, finding that the respondent owed the applicant $354,197.58 from the proceeds of the sale of her property.

The appellant, Aliesha Verma, brought a motion to stay an order of Stewart J. pending appeal to the Court of Appeal for Ontario.

The underlying order declared that a dog, Rocco Jr., was owned by the deceased Leonard Carvalho and formed part of his estate, ordering Ms. Verma to return the dog to the estate trustee.

The motions judge applied the three-part test for a stay from RJR-MacDonald Inc. v. Canada (Attorney General): serious question to be tried, irreparable harm, and balance of convenience.

The court found that the grounds of appeal had little prospect of success, that Ms. Verma failed to establish irreparable harm related to the denial of the stay, and that the balance of convenience favoured the estate trustee due to Ms. Verma's past conduct and social media campaign.

The motion for a stay was dismissed, and costs were awarded to the responding party.

This is a costs endorsement following an appeal.

The Court of Appeal previously rejected the appellants' claim to overturn the setting aside of a default foreclosure judgment but set aside the application judge's order for sale, directing a trial on whether one appellant (2670082 Ontario Corp.) was protected by the Land Titles Act.

In this costs decision, the Court found the respondent (Kelly Martin) wholly successful against one appellant (11037315 Canada Inc.) and awarded her partial indemnity costs.

The other appellant (2670082 Ontario Corp.) achieved partial success on appeal, and costs between 2670082 Ontario Corp. and the respondent were fixed but made payable in the cause of the future trial.

The appellants' overall request for substantial costs was rejected as excessive.

The appellants appealed an order setting aside a default judgment for foreclosure and possession.

The Court of Appeal upheld the setting aside of the default judgment based on equitable principles and irregular obtainment (lack of notice of assignment).

However, the court found the application judge erred in determining whether the subsequent purchaser (2670082 Ontario Corp.) was a bona fide purchaser for value without actual notice under the Land Titles Act, as the finding was based on constructive rather than actual knowledge.

The appeal was allowed in part, setting aside the order for sale and ordering a trial to determine if the subsequent purchaser was a bona fide purchaser for value without actual notice, which would affect their title.

This action arose from a failed residential real estate transaction where the plaintiffs sought specific performance of an Agreement of Purchase and Sale.

The defendants argued the contract was invalid or that damages were the appropriate remedy.

The court found a valid and binding agreement, timely waiver of conditions by the plaintiffs, and that the defendants had repudiated the contract.

Specific performance was granted, considering the property's uniqueness, the defendants' questionable ability to pay damages, and their bad faith conduct throughout the transaction.

The moving parties (appellants) sought an order setting aside the Registrar’s dismissal of their appeal and an extension of time to perfect the appeal.

The responding party (respondent) requested an adjournment to file responding materials, which was granted.

The motion judge also addressed the arguable jurisdiction of the Court of Appeal over the appeal, noting that the underlying orders had both interlocutory and final elements, and that leave to appeal might not be required given the interrelationship of the issues, citing relevant case law.

The motion was adjourned to a new date to allow the responding party to prepare.

The defendant, Mario Ignacio Rossi Diaz-Munoz, brought a motion to set aside an ex parte order that authorized the registration of a certificate of pending litigation (CPL) on his condominium unit.

The plaintiff, Lina Mao, had obtained the CPL claiming a constructive trust over the unit.

The court found that the ex parte motion should have been brought on notice and, crucially, that the plaintiff failed to make full and fair disclosure of material facts, including a signed residential tenancy agreement, emails confirming a landlord-tenant relationship, and the true nature of the N12 notice to end tenancy.

Due to this gross lack of disclosure and misrepresentation, the motion was granted, and the certificate of pending litigation was discharged.

This endorsement addresses the costs arising from an application where the Applicant successfully set aside a default judgment in a foreclosure action, and a subsequent unsuccessful motion by one of the Respondents to vary that order based on new evidence.

The Applicant sought full indemnity costs against one respondent and its director, and partial indemnity from another.

The court assessed the costs based on factors under the Rules of Civil Procedure and the Courts of Justice Act, declining to pierce the corporate veil to award costs against a non-party director.

The court awarded the Applicant $50,000 in costs for the original application, apportioned between two respondents, and an additional $7,500 for the motion to vary, payable by one respondent.

The applicant sought to set aside a default judgment for foreclosure obtained by a private mortgage lender after she missed a single $650 payment.

The property, valued at $575,000, was sold to a third-party corporation for $425,000.

The court found that the equities favoured the applicant, noting the disproportionate consequences of her default and that the purchaser was not a bona fide purchaser for value without notice.

The court also found the default judgment was irregularly obtained because the assignee of the mortgage failed to give the applicant written notice of the assignment before foreclosing.

The application was granted, the default judgment set aside, and the property ordered to be sold at fair market value.

The applicant mother brought an application for judgment against the respondent daughter for a $500,000 loan.

The applicant had mortgaged her home to provide the funds, and the respondent agreed to make the mortgage payments.

The respondent later refused to make further payments or repay the principal.

The court found an anticipatory breach of the loan agreement and unjust enrichment, granting judgment for the outstanding mortgage balance and payments made by the applicant.

Punitive damages were denied, but substantial indemnity costs were awarded due to the respondent's egregious conduct.

This endorsement concerns costs following the setting aside of a Mareva injunction against the defendant, Ms. Chang, due to the plaintiff's principal's failure to make full, fair, and frank disclosure.

Ms. Chang sought substantial indemnity costs, while the plaintiff proposed a significantly lower amount.

The court considered factors under Rule 57.01 of the Rules of Civil Procedure, including the defendant's success on the injunction motion and the plaintiff's principal's inappropriate conduct.

Costs were fixed at $20,000, payable jointly and severally by the plaintiff corporation and its principal, Mr. Deng, due to his misconduct and to prevent Ms. Chang, a minority shareholder, from effectively paying her own costs.

The moving party brought a motion under Rule 59.06 of the Rules of Civil Procedure seeking to set aside or vary a prior consent order requiring her to vacate a property by a specified date.

She argued the responding parties had failed to comply with disclosure obligations, that the consent order should be interpreted alongside earlier family law orders, and that circumstances had materially changed.

The court reviewed the principles governing the finality of settlements and consent judgments and held that such orders may only be set aside for limited grounds such as fraud, misrepresentation, common mistake, or a material change in circumstances.

The evidence did not establish any of these grounds.

The court concluded the consent order was clear, voluntarily agreed to after negotiations, and remained binding.