Dominique Michaud

The applicants, 2235209 Ontario Inc. and Guy Salt, brought motions seeking interim orders including holding sale proceeds in trust, an injunction prohibiting dealings with Lot 5, a Certificate of Pending Litigation (CPL) on Lot 5, and a Mareva Order.

The motions were based on allegations of fraud regarding mortgage amounts, which the applicants claimed vitiated prior settlements where they had terminated their agreements of purchase and sale.

The court dismissed the motions, finding that the applicants failed to establish a serious issue to be tried, irreparable harm, or that the balance of convenience favored granting the injunctions.

The court also noted the applicants' lack of clean hands, delay, and insufficient undertakings.

This addendum to a prior summary judgment resolves a dispute over the precise amount outstanding under a settlement agreement, which was a condition for granting relief from forfeiture to the defendants.

The court determined the defendants were liable for $12,000 in default administration fees for a specific period (July, August, September 2018) and $108,624.53 in legal fees incurred before November 2018, totaling $120,624.53.

The court rejected the plaintiff's claim for interest on default administration fees and for default administration fees accruing after October 2018 due to the plaintiff's own intransigence in providing an accounting.

A deadline of 30 days was set for payment, failing which the relief from forfeiture would be null and void.

The plaintiffs moved for leave to issue a Certificate of Pending Litigation (CPL) against a mortgage held by the defendant on a property sold to a third party.

The plaintiffs alleged that the defendant was overpaid upon the discharge of prior mortgages and claimed a trust interest in the new mortgage.

The court dismissed the motion, finding that while a claim to a mortgage may constitute an interest in land, the equities weighed heavily against granting a CPL due to the plaintiffs' significant delay, prior acknowledgments of the debt, and inability to satisfy a potential damages award.

The plaintiffs, a group of mortgage lenders, brought a motion for summary judgment seeking full arrears at a 25% annual interest rate and default administration fees after the defendants breached a settlement agreement.

The settlement had reduced the interest rate, but the defendants' opposition to a property sale approval motion triggered a clause voiding the release.

The defendants sought relief from forfeiture or argued the rates violated the federal Interest Act.

The court granted relief from forfeiture, finding the breach caused minimal prejudice to the lenders compared to the substantial forfeiture sought, and ordered an accounting of any remaining settlement amounts.

The court also found the 25% interest rate and default fees were not unenforceable under the Interest Act due to prior Supreme Court and Court of Appeal rulings on time-triggered rate increases and consensual resolutions.

The defendant brought a motion for an order requiring the plaintiff to post security for costs under Rule 56.01(1).

The plaintiff conceded the initial onus but argued it had a good chance of success at trial regarding its claim for wrongful termination of a distributorship agreement.

The court found that the plaintiff demonstrated a good chance of success on the issues of payment terms and alleged breach of a mutual exclusivity provision.

The motion for security for costs was dismissed, and costs were awarded to the plaintiff.

This addendum to a prior summary judgment decision (2018 ONSC 4978) corrects the amount owing on a mortgage and clarifies the post-judgment interest rate.

The court had previously misstated the amount owing.

The corrected mortgage debt as of August 16, 2018, is $2,841,580.55, and post-judgment interest is to accrue at the rate specified in the mortgage.

The defendant agreed to the corrected amount and took no position on the interest rate.

The plaintiffs, Trez Capital, brought a summary judgment motion to enforce a Guarantee and Postponement of Claim against Ontario International College Inc. (OIC).

OIC resisted, arguing lack of genuine independent legal advice, undue influence, unconscionability, and non est factum, claiming its liability was limited to $1 million.

The court found no genuine issue requiring a trial, determining that OIC was adequately advised by its lawyer, Mr. Shapiro, and understood the nature and consequences of the guarantee.

The court reiterated that the absence of independent legal advice alone is not a defence to a guarantee claim, especially when the guarantor is a direct beneficiary of the loan transaction.

Summary judgment was granted to the plaintiffs.

The appellants appealed the dismissal of their motion for summary judgment seeking to have the respondents' action declared statute-barred under the Limitations Act, 2002.

The critical issue was whether the respondent lender, Trez Capital, had knowledge of the appellants' ownership interest in the project corporations prior to the expiration of the two-year limitation period.

The motion judge conducted a mini-trial on the disputed question of what was disclosed during a September 13, 2013 telephone call between the respondent's representative and Trez's representative.

The motion judge preferred the evidence of Trez's representative and found that the appellants' ownership interest was not disclosed during that call, thereby rejecting the limitation defence.

The appellants appealed on multiple grounds, including that the motion judge made findings beyond what was necessary to determine the motion, made palpable and overriding errors of fact, and erred in law regarding the limitations period analysis.

The applicants sought a temporary injunction to prevent a power of sale, an order to assign a first mortgage, and a vesting order for three lots, aiming to extinguish a second mortgage held by one of the respondents.

The court dismissed all requests, finding the applicants' attempt to "cut out" the second mortgage was not bona fide.

The court held that the assignment, even if granted, would not extinguish the second mortgage due to contractual subordination and the subsequent mortgagee's right to redeem.

The court also found no serious issue to be tried for the injunction, no irreparable harm, and that the balance of convenience favored the respondents, noting the applicants did not come with clean hands.

This endorsement corrects factual errors in a previous endorsement dated May 24, 2017, regarding specific dates of telephone calls and property management appointments.

It also grants the plaintiffs' request for an order dismissing the limitations defence of the Bernstein defendants, which was an oversight in the prior decision.

Dr. Stanley Bernstein and his companies moved for summary judgment to dismiss claims of fraud, conspiracy, and oppression brought by Trez Capital Limited Partnership and others, arguing the action was statute-barred under the Limitations Act, 2002.

The central issue was whether a telephone call on September 13, 2013, provided Trez with sufficient notice of a claim to start the limitation period.

The court conducted a mini-trial on the limitation issue, weighing conflicting evidence regarding the content of the call.

The court found that Trez was not put on sufficient notice and that, even if it had been, a proceeding would not have been an appropriate means to seek remedy until the extent of loss from property sales by a receiver was known.

The motion for summary judgment was dismissed.

The applicant, CVC Ardellini Investments Inc., sought leave to file a second supplementary application record, or alternatively, a supplementary affidavit from Robert A. Izsak and an affidavit from Elio Monaco.

The application aimed to obtain an order assigning the respondent's mortgage on the basis of default.

The court applied Rule 39.02(2) of the Rules of Civil Procedure, which governs the filing of affidavits after cross-examination.

Leave was granted only for paragraph 8 of Mr. Izsak's supplementary affidavit, which attached the mortgage amending agreement, as it responded to information previously refused during cross-examination due to a misinterpretation of PIPEDA.

All other parts of Mr. Izsak's affidavit and Mr. Monaco's affidavit were deemed inadmissible as they contained information known prior to cross-examination, did not respond to matters raised on cross-examination, or were irrelevant.

The applicant's motion was dismissed in part, and the respondent was awarded substantial indemnity costs.

The applicants commenced an application seeking a compulsory purchase of their shares or winding up of the companies, along with an initial motion for an interim receiver.

After receiving financial disclosure, the applicants abandoned the initial motion and brought an amended motion for an inspector, which they later also abandoned in favour of different relief.

The respondents sought costs thrown away for the abandoned initial motion and costs for the amended motion.

The court awarded the respondents costs thrown away 'on account' and costs of the amended motion on a partial indemnity basis, noting the applicants' approach of seeking draconian relief only to abandon it caused unnecessary legal work.

The moving party brought a motion to vary a prior judgment to permit a company to accept a new, higher offer to purchase a commercial property.

The parties had previously signed minutes of settlement agreeing to sell the property to a tenant based on a revived earlier offer.

The moving party argued the new offer constituted new facts discovered after the judgment under Rule 59.06(2)(a).

The court dismissed the motion, finding the new offer was solicited before the settlement became binding and did not constitute new facts.

The court emphasized the finality principle and held the parties to their freely negotiated bargain.

A condominium corporation sought an equitable lien and priority over a registered mortgage for substantial unpaid common expense arrears relating to numerous units.

The corporation argued that the unit owner had been unjustly enriched by failing to pay common expenses and that the court should grant equitable relief or revive the statutory condominium lien that had expired.

The court held that the Condominium Act, 1998 provides a comprehensive statutory scheme governing liens for common expenses and that courts cannot create an equitable lien where the statute occupies the field.

Even if such a lien existed, it would not take priority over the previously registered mortgage under the Land Titles Act.

The court further held that a purchaser or mortgagee is entitled to rely on the representations contained in a status certificate and is not required to investigate beyond it.

The motion seeking priority or revival of the lien was dismissed.

The plaintiffs sought leave to appeal a $52,000 costs order made against them following their successful motion to amend the statement of claim.

The plaintiffs argued the motions judge misapplied the 'indulgence' principle by awarding costs against the successful moving party.

The Divisional Court dismissed the application, finding no conflicting decisions or reason to doubt the correctness of the highly discretionary, fact-specific costs award.

The court held the stringent test for leave to appeal under Rule 62.02(4) was not met.

The applicants and respondents entered into joint venture agreements to invest in commercial real estate projects through jointly owned companies.

The applicants discovered that the respondents were commingling funds, failing to make their required equity contributions, and diverting the applicants' funds to their own personal benefit and to companies they solely owned.

The court found that the respondents breached their contractual and fiduciary duties and were unjustly enriched.

The court imposed constructive trusts over several properties owned by the respondents, appointed a receiver over the respondents' assets, and cancelled the respondents' shares in the jointly owned companies where they had not contributed equity.

The defendant accountant sought leave to appeal an order granting the plaintiffs leave to amend their statement of claim to add a new claim against him.

The defendant argued the new claim was statute-barred and that the motion judge erred in leaving the issue of discoverability to the trial judge without requiring sufficient evidence from the plaintiffs.

The Divisional Court dismissed the application for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the jurisprudence establishes that factual disputes regarding discoverability on a Rule 26.01 motion should generally be left to the trial judge.

The appellants, who provided personal indemnities to the respondent insurer for a Tarion bond on a condominium project, appealed a partial summary judgment ordering them to pay unpaid premiums, legal fees, and bond demands.

The Court of Appeal dismissed the appeal, finding no genuine issue requiring a trial.

The court rejected the appellants' arguments regarding unjust enrichment and the respondent's alleged obligation to release the bond.

The court also found no procedural error in the motion judge's decision to allow a second reply affidavit, noting the procedure was consistent with the Supreme Court's guidance in Hryniak.

The court determined costs following the abandonment of a motion seeking to invalidate a mortgage registered against a Toronto property.

The moving party sought partial indemnity costs exceeding $12,000 after the applicants abandoned the motion.

The court held that the moving party was not entitled to recover costs incurred after a certain date because continuing to prepare materials was unreasonable while settlement discussions were ongoing and no hearing date had been set.

Considering the dockets and the proportionality of the work performed, the court found the claimed amount excessive.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court awarded reduced partial indemnity costs of $5,000.