Derek Ketelaars

The respondent (1000093910 Ontario Inc.) brought an urgent motion for the court to sign a draft order including a provisional execution, which was opposed by the prospective purchaser (2557904 Ontario Inc.).

The purchaser had filed an appeal and sought a stay of a prior endorsement.

The court considered the urgency due to significant daily costs and an expiring financing offer.

The court affirmed its jurisdiction under section 195 of the Bankruptcy & Insolvency Act to grant provisional execution, rejecting the purchaser's arguments that such relief was not properly requested or that jurisdiction lay solely with the Court of Appeal.

Balancing the irreparable harm, the court found that the prejudice to the applicant (Peakhill Capital Inc.), respondent, second mortgagee, and guarantors if provisional execution was not granted outweighed the harm to the purchaser.

The motion for provisional execution was granted.

The plaintiff, Resco Mortgage Investment Corporation, moved for summary judgment to enforce a defaulted mortgage against the defendant, Sandeep Kaur.

The defendant argued the renewed mortgage terms were unconscionable due to unequal bargaining power and an improvident bargain.

The court found no genuine issue requiring a trial, determining that the mortgage terms were not unconscionable as Resco did not act predatorily or take advantage of a power imbalance.

The court granted summary judgment for the plaintiff, allowing recovery of principal and interest, but disallowed certain default fees claimed by the plaintiff, and granted leave *nunc pro tunc* for the timing of the notice of sale and statement of claim.

The Receiver, PricewaterhouseCoopers Inc., sought court approval for an asset purchase agreement (APA) and ancillary relief, including approval of its reports, interim statement, sealing of a confidential report, and fees.

The Debtor, 2563773 Ontario Inc., sought an adjournment to allow an unsuccessful bidder (810) to firm up financing for a higher offer.

The court denied the adjournment, deferring to the Receiver's judgment that the selected APA, though lower in price, offered greater certainty and was in the best interests of all stakeholders given the Debtor's history of delays and the unsuccessful bidder's lack of firm financing.

The court approved the APA, the Receiver's reports and activities, its fees, and the sealing order.

The moving party, Gaspare Caruso, brought a motion to annul the bankruptcy of 1947755 Ontario Ltd. under s. 181(1) of the Bankruptcy and Insolvency Act.

The assignment in bankruptcy had been made by John Hanna Nissan amidst a protracted dispute over corporate control.

The court found that the corporation was not insolvent at the time of the assignment, as its assets exceeded its liabilities and it could have met its obligations with a modicum of effort.

Furthermore, the court held that the assignment was an abuse of process, strategically timed to avoid scheduled examinations in the ongoing litigation.

The motion to annul the bankruptcy was granted.

The applicant sought to be appointed as the succeeding Estate Trustee without a Will for the deceased's estate and requested a Benjamin Order declaring her late father and aunt as the deceased's closest next of kin.

The court reviewed the genealogical and documentary evidence presented by the applicant to establish that her grandmother was the sister of the deceased's mother.

The court found the evidence inconsistent, unreliable, and insufficient to prove the claimed kinship.

Consequently, the court dismissed the application, declined to issue the Benjamin Order as premature, and ordered the applicant's late father's estate to pass accounts and pay the estate funds into court.

Following a judgment granting the applicant's application and dismissing the respondent's cross-application, the parties could not agree on costs.

The applicant sought costs on a substantial indemnity basis, relying on Rule 49 offers to settle.

The court found that the respondent's conduct did not warrant substantial indemnity costs generally, but the applicant's offers to settle triggered Rule 49.10 consequences.

The court awarded the applicant costs of $60,000, representing partial indemnity costs until the date of the offers and substantial indemnity costs thereafter.

The applicant mortgagor paid the principal and all interest payable under a commercial mortgage two weeks before the maturity date.

The respondent mortgagee demanded a prepayment charge of one month's interest, which the mortgagor paid under protest to obtain a discharge.

The mortgagor applied for a declaration that the charge was improper and for repayment.

The mortgagee cross-applied, arguing it was entitled to three months' interest and that the parties had reached a settlement.

The court found no settlement was reached and held that the prepayment clause was not triggered because the mortgagor paid all interest due up to the maturity date.

The court ordered the mortgagee to repay the improperly charged fees.

Following reasons for judgment in two related applications regarding a commercial lease, the successful parties, The Tire Pit Inc. and Michael Goldlist, sought costs on a substantial indemnity basis.

The court found that the conduct of the unsuccessful parties did not rise to the egregious level required for substantial indemnity costs.

The court awarded partial indemnity costs, ordering Augend and Charles Bulmer jointly and severally to pay $36,000 to The Tire Pit Inc., and Augend to pay $31,000 to Michael Goldlist.

Augend, the new owner of a commercial property, brought an application seeking a declaration that the lease with the tenant, Tire Pit, had expired and seeking vacant possession.

Tire Pit brought a companion application seeking a declaration that it had validly exercised its option to extend the lease for another five years.

The court found that Tire Pit had personally delivered written notice of its intention to extend the lease to the former landlord at his home, more than six months before the lease expired.

Although the lease prescribed notice by registered mail or courier, the court applied the principle that actual notice by a no less advantageous method is valid where the lease does not strictly exclude other methods.

The court declared the lease validly extended and dismissed Augend's application.

This case involved urgent motions concerning the sale of land (Huntmar Lands) by Amazon Land Development Corp. to Lioness Developments Inc., which was complicated by a Caution registered by 2718379 Ontario Inc. ("271") based on an earlier "In Principle Agreement" (IPA) with Amazon.

Corfinancial Corp., Amazon's agent, sought orders to facilitate the sale and remove the caution. 271 and 2587410 Ontario Inc. ("258") brought a cross-motion seeking to block the sale, enforce the IPA, and obtain partial summary judgment, arguing Amazon's termination of the IPA was invalid.

The court found that there were too many disputed facts and credibility issues to grant summary judgment on the validity of the IPA's termination.

However, to preserve the deteriorating equity in the property due to accruing mortgage interest and ongoing power of sale proceedings, the court ordered an interim sale of the Huntmar Lands to Lioness under Rule 45.01(2).

The Caution by 271 and a $1 million mortgage registered by 258/271 were vacated, and the net proceeds of sale were ordered to be paid into court, while Corfinancial's proposed mortgage was not registered.

The plaintiff commercial landlord sought summary judgment against an indemnifier for unpaid rent and charges under two commercial leases.

The court determined that the landlord's demand for a fee to consent to a change in corporate control, while unreasonable, did not release the indemnifier from their obligations.

The indemnifier was found liable for the tenant's obligations under both leases, subject to specific reductions in the landlord's claimed damages for historic, unbilled expenses.

The plaintiff, Parker Lee, sued the defendants, Feng Qing He and Jie He, for the balance owing on a $700,000 mortgage after default.

The defendants disputed various claimed fees, alleging they were illegal or unreasonable, and counterclaimed for damages due to an inability to refinance.

The court conducted a mini-trial to determine the validity of an increased interest rate, a three-month bonus interest, and several administrative, investigation, rent attornment, property management, and legal fees.

The court found the increased interest rate and most administrative and property management fees invalid, but allowed some statement fees, rent attornment fees, and legal fees.

The defendants' counterclaim for damages was dismissed as they failed to prove they were ready, willing, and able to refinance.

The defendants defaulted on a $700,000 mortgage and sought an order under s. 12 of the Mortgages Act to discharge the mortgage by paying an undisputed amount into court while delaying enforcement to secure refinancing.

The plaintiff opposed paying less than the full claimed amount and delaying enforcement.

The court granted the defendants 15 days to pay the undisputed amount of $745,465 to postpone the mortgage, failing which the plaintiff would be entitled to partial summary judgment and a writ of possession.

The disputed balance was ordered to be determined at a mini-trial.

The Trustee of WF Canada Ltd. applied under s. 96 of the Bankruptcy and Insolvency Act (BIA) to recover $411,000 from Rocky Racca and Jessica Agostino, alleging transfers at undervalue.

The application proceeded as a trial of an issue.

The court found that Racca received $389,000 in transfers at undervalue from WF Canada Ltd. after Liquid Capital became a creditor, and ordered him to repay this amount to the estate.

The court dismissed the application against Agostino, finding she was neither a party nor privy to the transfers, as she was not involved in the loans or the operation of the joint account into which the funds were deposited, and received no benefit.

The defendant Casboro Industries Limited brought a motion for security for costs against the plaintiff AAD Investments Inc. under Rule 56.01(1)(d).

The court applied a two-step test, finding that the defendant met its initial onus by demonstrating the plaintiff was a corporation with insufficient assets in Ontario to cover an adverse cost order.

The plaintiff failed to rebut this, as its affidavit evidence regarding assets was found to be materially misleading and false, and it did not establish impecuniosity or a high chance of success.

The court granted the motion, ordering the plaintiff to post $150,000 in security for costs in instalments and pay $23,000 in costs for the motion.

The defendants successfully moved to set aside a noting in default and compel particulars.

The court awarded substantial indemnity costs against the plaintiffs and their counsel personally due to the counsel's unprofessional conduct, including sharp practice, failure to communicate, and abuse of court process.

The decision highlights the importance of civility and adherence to professional conduct rules.

The plaintiffs brought a motion to compel answers to questions refused and taken under advisement during examinations for discovery of two individual defendants, Alan G. Fickett and Aaron T. Morrison, and their associated corporate entities, Ecolight LED Systems, LLC and Ecolight International, LLC.

The underlying action alleged misrepresentation, unpaid loans, and diversion of inventory by a co-defendant through a scheme involving the Ecolight companies.

The court assessed the relevance of each refused question based on the pleadings and the scope of discovery, compelling answers for some questions related to inventory suppliers, financing, and bank statements, while refusing others concerning corporate records and marketing plans.