Domenico N. Magisano

Following a commercial receivership application, the court determined entitlement and quantum of costs.

The moving party had been substantially successful in enforcing its security and was presumptively entitled to costs against the debtor respondents.

Relying on the security agreement, the court held that the contractual provision requiring payment of “solicitor and own client costs” justified an award on a substantial indemnity basis against the corporate debtors and one individual debtor.

However, a separate individual respondent who was not party to the security agreement was ordered to pay costs only on a partial indemnity basis.

Mortgagee respondents who successfully narrowed the scope of the receivership order were ordered to bear their own costs in relation to the issues between them and the applicant.

The plaintiff, an involuntary creditor due to overdrawn accounts, sought the appointment of a receiver over the corporate debtors' receivables and the individual debtors' real property after the debtors defaulted on a demand loan.

The motion was opposed by the debtors and by prior mortgagees who argued the receiver's mandate should not extend to the real property.

The court found it just and convenient to appoint a receiver over both the receivables and the real property to ensure a fair, transparent, and efficient realization process for all creditors, while respecting the mortgagees' priorities.

The proposed intervenor appealed the dismissal of her motion for leave to intervene in an Ontario action seeking recognition of a United States judgment against a foreign state and its security ministry under the Justice for Victims of Terrorism Act.

The Court of Appeal held that she met the intervention criteria under rule 13.01(1) because she had a contingent interest in the proceeding and might be adversely affected if the foreign judgment were recognized and enforced against limited Canadian assets.

The court further held that the motion judge erred by treating the matter as a private commercial dispute and by failing to recognize the public importance of the new statutory regime.

The proposed intervenor had a useful contribution to make, particularly on a limitations argument not raised by other parties.

The appeal was allowed and leave to intervene was effectively granted through directions permitting the filing of a factum.

The appellant franchisee appealed an order appointing a receiver over its business.

The franchisee argued that the franchisor had forgiven its debt for unpaid royalties and advertising contributions through two letters, and that the application judge erred in considering PST arrears not pleaded in the notice of application.

The Court of Appeal dismissed the appeal, finding that the letters were merely proposals requiring acceptance, which never occurred.

The court also held that the PST default was properly considered as it was raised in supporting affidavits without causing prejudice, and rejected new arguments regarding jurisdiction, waiver, and estoppel.

The appellants appealed a summary judgment dismissing their claim for specific performance of an agreement of purchase and sale of land.

The appellants had failed to pay the deposit within the stipulated five days, and the vendors treated the agreement as at an end.

The Court of Appeal dismissed the appeal, finding the motion judge was entitled to conclude that the appellants knew an oral comment by the vendors' representative was not legally binding to amend the agreement or waive rights.

The appellant appealed a trial judgment dismissing its claims for breach of an agency agreement, negligent misrepresentation, and breach of contract.

The trial judge found no agency agreement existed, no reasonable reliance on interest rate statements, and no duty to advise of commission changes.

The Court of Appeal dismissed the appeal, finding evidence supported the trial judge's findings and rejecting the argument that lack of reliance was not pleaded.

The appellant appealed a trial judgment awarding damages for unpaid commissions, computer use, and the Infranor contract.

The Court of Appeal dismissed the appeal, finding that the claim was for unpaid commissions rather than loss of profits, the respondent had paid for computer use, and the trial judge's conclusion regarding the Infranor contract was open to him on the record.

The appeal was dismissed with costs.