Doug Bourassa

The appellant, Canada Investment Corporation (CIC), appealed an order directing that surplus proceeds held for CIC from a receivership sale be paid to the respondent creditors.

The respondents had successfully challenged the validity of CIC's pre-assignment expenses in a related action.

The Court of Appeal dismissed the appeal, finding that the claims process did not require a statement of claim, the onus correctly shifted to CIC to dispute the Receiver's recommendation, and issue estoppel precluded CIC from re-litigating the quantification of pre-assignment expenses already decided in the related action.

The plaintiff mortgagee brought a motion for summary judgment to enforce a $1.6 million matured mortgage.

The defendant's last-minute request for an adjournment was denied due to a lack of extenuating circumstances.

The court granted judgment for the principal debt, accrued interest, and possession.

However, the court dismissed the plaintiff's claims for various administrative fees and a three-month interest charge, finding them to be unenforceable penalties at common law and in violation of section 8 of the Interest Act, as the plaintiff provided no evidence that they were genuine pre-estimates of damages or actual costs incurred.

The third parties moved to strike the self-represented defendant's third-party claim.

The defendant had previously alleged mortgage fraud against the plaintiff and the third parties, but a prior summary judgment motion found the mortgage valid and no evidence of fraud.

The defendant sought an adjournment, which the court denied due to a prior peremptory order and insufficient evidence of incapacity.

The court struck the third-party claim, finding it was issued late without leave, constituted an abuse of process as a collateral attack on the prior judgment, and disclosed no reasonable cause of action.

Following an appeal, the parties agreed on the judgment amount but could not agree on costs.

The respondent sought full indemnity costs of $20,866.02 based on the standard charge terms of the subject mortgage.

The Court of Appeal awarded the requested amount, finding it fair, reasonable, and proportionate given the appellant's unfounded allegations of fraud and new issues raised on appeal.

The appellant appealed a summary judgment enforcing a mortgage against her.

She argued the motion judge erred in denying an adjournment, failing to find the mortgage charged a criminal rate of interest, and granting summary judgment despite her allegations of fraud.

The Court of Appeal dismissed the appeal on the adjournment and fraud issues, and declined to hear the criminal interest rate argument as it was raised for the first time on appeal.

The appeal was allowed solely to correct calculation errors in the judgment amount related to an abandoned advance.

The plaintiff, Weins Canada Inc., brought a motion seeking to include contractual pre-judgment and post-judgment interest in a draft order, following a successful summary judgment motion for breach of a commercial lease.

The original summary judgment order, which awarded $106,614.13 plus $10,000 in costs, did not explicitly mention interest, despite it being claimed in the Statement of Claim.

The defendant, Ensil Corporation, opposed the motion, arguing the court was functus officio.

The court found it was not functus officio as the order had not yet been entered.

However, the motion was dismissed because the plaintiff failed to provide any new evidence or sufficient reason to vary, amend, or add to the original reasons for decision.

Angela Beauty Parlour Ltd. (Plaintiff) sued Gurnam and Surjit Multani (Defendants) for breach of a commercial lease, unjust enrichment, and negligent misrepresentation related to a beauty salon unit and residential units.

The Defendants counterclaimed for increased rent.

The court found that the Defendants were responsible for the cost of installing a tiled floor ($5,844) and ordered the return of $12,000 paid by the Plaintiff under an unenforceable oral agreement for increased rent.

All other claims by the Plaintiff, including for renovation costs, lost profits, and damages for misrepresentation or breach of quiet enjoyment/parking, were dismissed.

The Defendants' counterclaim for increased rent was also dismissed as the oral agreement was unenforceable.

The receiver of assets in receivership proceedings moved to determine whether an appeal brought by Canada Investment Corporation (CIC) from an order of Penny J. was as of right or required leave under the Bankruptcy and Insolvency Act.

The order had directed that proceeds from the sale of the Caldwell property, otherwise payable to CIC, be paid to the Stanbarr Claimants based on findings in a prior action that CIC was indebted to them.

The motions judge held that the appeal was as of right under section 193(c) of the BIA because the order resulted in a loss to CIC by directing payment of funds otherwise due to it to third parties.

The receiver's motion was dismissed.

The plaintiff landlord brought a summary judgment motion against its former commercial tenant for rent arrears and prospective damages for the unexpired term of the lease.

The tenant argued the lease was surrendered by agreement or operation of law, releasing it from future obligations.

The court found no surrender agreement was finalized and the landlord had effectively terminated the lease with notice of a claim for prospective damages under the Highway Properties framework.

Summary judgment was granted to the landlord for the rent arrears and prospective damages, less the security deposit.

In a receivership proceeding, the Receiver conducted a court-ordered claims process to determine entitlement to surplus proceeds from the sale of a property.

The Stanbarr Claimants sought the funds based on a prior judicial finding that the respondent, Canada Investment Corporation, had improperly inflated a mortgage payout statement.

The respondent opposed the Receiver's recommendation to pay the funds to the claimants, arguing the prior judicial finding was not final.

The court upheld the Receiver's recommendation, finding the prior decision was res judicata, and ordered the funds paid to the claimants.

The appellant appealed a summary judgment granted in favour of the respondent.

The appellant argued that the motion judge erred by deciding the case on summary judgment when the record was deficient.

The Court of Appeal rejected this submission, finding that the motion judge was able to analyze the legal relationship based on the evidentiary record.

The court determined that the appellant was the purchaser of travel products on behalf of its customers and the respondent was the seller, making the appellant responsible for the invoices.

The appeal was dismissed with costs.

Ivan Cavric appealed a Master's order that required him to answer questions during an examination in aid of execution and pay personal costs.

The appeal challenged the Master's decision on the scope and relevance of questions, whether certain questions had already been answered, and the propriety of awarding costs personally against Cavric, a non-party to the original judgment.

The court dismissed the appeal, finding no palpable and overriding error in the Master's order.

It held that the context of the dispute provided adequate notice for personal costs against Cavric, despite the Bank's motion seeking costs against "the Defendant."

The plaintiff, a travel wholesaler, sought summary judgment against the defendant travel agency for unpaid airline tickets totaling $312,964.10, which were charged back after fraudulent credit card payments.

The defendant argued it was a "middleman" or agent of the plaintiff and not liable.

The court found a direct contractual relationship between the plaintiff as a wholesale seller and the defendant as its customer, making the defendant responsible for payment.

The court rejected the agency argument due to lack of evidence of consent, control, or authority to affect the principal's legal position.

Judgment was awarded to the plaintiff.

This is a costs endorsement following a summary judgment motion where the Smiths' defence and counterclaim were dismissed, and Kheen was granted summary judgment with full indemnity costs.

The court applied the factors stipulated in Rule 57 of the Rules of Civil Procedure.

It found the costs claimed by Kheen, including legal fees and disbursements, to be reasonable, necessary, and directly related to the complex litigation, which was necessitated by the Smiths' conduct in attempting to avoid their legal obligations.

Kheen was awarded $23,070 in costs (inclusive of HST) and $2,359.32 in disbursements, payable jointly and severally by Nadine Theresa Smith and Shane Davidson Smith.

The applicant, Claude Bitton, brought an action for breach of contract and an application for an oppression remedy against Alain Checroune, A. Checroune Realty Corporation, and 500 Sheppard Avenue West Ltd. The parties had intended to jointly develop a condominium property.

The court found that a binding agreement existed regarding the assumption of a mortgage, registration of new mortgages, and share transfer, but no enforceable agreement on development funding or management.

The court concluded that Checroune and A. Checroune Realty engaged in oppressive conduct by failing to discharge the CMLS mortgage, improperly registering a second mortgage, and failing to fund half of the corporation's ongoing expenses.

However, the court found no damages caused by Checroune's conduct, attributing project stagnation to Bitton's inaction.

The court ordered the invalidation of a Notice of Sale, discharge of the CMLS mortgage, partial discharge of Bitton's mortgage, and the sale of A. Checroune Realty's shares in 500 Sheppard Avenue West Ltd. to Bitton, with further submissions required for valuation.

The plaintiffs, who held a second mortgage on a partially completed retirement home, sued the first mortgagee for damages, alleging an improvident sale of the property under a power of sale.

The property was sold at auction for $2,500,000, leaving no proceeds for the plaintiffs.

The court dismissed the action, finding that the actual cost to complete the project was significantly higher than estimated in the appraisal, meaning the property actually sold for more than its true market value.

Furthermore, the court held that the defendant took reasonable precautions to market the property and obtain fair market value.

Following a successful application regarding a dispute between a first and second mortgagee, the applicant sought costs of $43,885.29.

The respondent did not deliver costs submissions.

The court found the requested amount, calculated on a partial indemnity basis up to the date of an offer to settle and substantial indemnity thereafter, to be reasonable and awarded the full amount.

The Receiver brought a motion seeking a determination on whether the estates of Redstone Investment Corporation (RIC), Redstone Capital Corporation (RCC), and 1710814 Ontario Inc. o/a Redstone Management Services (RMS) should be substantively consolidated.

RIC and RMS Investors argued for consolidation, while RCC Investors opposed it, citing a General Security Agreement (GSA) granting RCC priority over RIC's assets.

The court found the founder's (Mr. So) evidence unreliable and dismissed subjective investor state of mind as irrelevant to the consolidation analysis.

Applying the Northland factors, the court determined that the elements of consolidation were not present, as assets were segregable, financial statements were separate, and significant prejudice would result to RCC Investors if consolidation were ordered.

The motion for substantive consolidation was denied.

The plaintiff and all defendants by counterclaim brought motions for summary judgment against the defendants/plaintiffs by counterclaim (the Smiths) concerning a property refinancing.

The Smiths alleged misrepresentation of mortgage debt and breach of trust/negligence by the solicitors involved.

The court found no genuine issue for trial, concluding the Smiths' position lacked credibility due to their failure to disclose the true mortgage amount, their acceptance of the refinancing proceeds, and the absence of any actual loss.

The court granted summary judgment to the moving parties, dismissing the Smiths' counterclaim and ordering full indemnity costs, deeming the action unmeritorious.

The applicant, a second mortgagee, sought a determination of the date the respondent, the first mortgagee, became a mortgagee in possession.

The court examined the terms of a forbearance agreement between the first mortgagee and the mortgagor, along with the parties' conduct.

The court concluded that the first mortgagee took complete control of the property and the mortgagor's business operations through the forbearance agreement, thereby becoming a mortgagee in possession on the date the agreement was signed, rather than the later date of the mortgagor's bankruptcy.

This determination impacts the calculation of the mortgagor's indebtedness to the first mortgagee and the second mortgagee's interest in the property's sale proceeds.