Doug Bourassa

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 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.

This costs endorsement follows a hybrid trial where the applicants were largely successful against several respondents concerning an invalid power of sale, but unsuccessful against Ginkgo Mortgage Investment Corporation.

The court awarded partial indemnity costs to the applicants against the unsuccessful respondents, with a several order for payment.

The court also fixed partial indemnity costs payable by the applicants to Ginkgo, declining to issue a Sanderson order after applying the two-step test.

Following a four-day trial where both the claim and counterclaim were dismissed, the parties made submissions on costs.

The defendant sought partial indemnity costs of $71,412.81, while the plaintiff argued each party should bear their own costs due to divided success.

The court found that success somewhat favoured the defendant, as the trial focused primarily on the main claim.

Applying the principle that costs should reflect what an unsuccessful party could reasonably expect to pay, the court ordered the plaintiff to pay the defendant $25,000 in costs.

The plaintiff buyer sought specific performance of a condition in an Agreement of Purchase and Sale for a commercial investment property, alleging the defendant seller failed to deliver required due diligence documents.

The seller counterclaimed for the $100,000 deposit, arguing the buyer defaulted.

Following a four-day trial, the court dismissed both claims.

The court found the seller had satisfied its document delivery obligations.

Furthermore, the court held that specific performance was unavailable because the property was purchased solely for investment purposes and lacked uniqueness.

The seller's counterclaim was dismissed because the buyer never waived the condition, meaning the agreement became null and void and the deposit was returnable to the buyer.

In the context of a receivership, representative counsel for the investors of Redstone Capital Corporation brought a motion for leave to deliver a new affidavit in an ongoing substantive consolidation hearing.

The hearing had already commenced and was adjourned pending this motion.

The court applied the test under Rule 39.02(2) of the Rules of Civil Procedure and found that the proposed evidence, which detailed an individual investor's motivation for investing, was not relevant to the test for substantive consolidation.

The motion for leave was dismissed.

The moving party sought a determination of how proceeds from a power of sale should be distributed between mortgagees.

The dispute concerned whether a first-ranking mortgagee could add a $230,000 settlement payment made to an execution creditor to the secured mortgage amount.

The court held that the payment could not be added because the mortgage had been assigned to another entity before the settlement was made, meaning the payer no longer held a mortgage interest to protect.

The court further rejected arguments based on resulting trust and equitable subrogation, emphasizing the Land Titles Act principles of certainty of title and the inability to enforce unregistered beneficial interests against third parties.

The settlement payment and related legal costs were therefore not recoverable as part of the mortgage debt.

Subsequent mortgagees challenged the validity of a first mortgagee’s power of sale of a Toronto property, alleging they were never served with the required notice and that the notice misstated the amount owing under the mortgage.

The court found the notice of sale had not been served on the subsequent encumbrancers due to a mailing error and that the amount claimed owing was materially overstated through the improper inclusion of pre‑assignment expenses.

As a result, the statutory requirements of the Mortgages Act were not satisfied and the power of sale was invalid.

The purchaser was a bona fide purchaser for value but had actual notice that the validity of the sale was being challenged and therefore could not rely on statutory protections for “professed compliance.” The purchaser and related subsequent mortgagees did not obtain valid title or charges as against the applicants, though the independent first mortgagee lender retained a valid interest.

The plaintiff and defendants entered into an agreement of purchase and sale for commercial properties for $36,000,000.

The agreement was conditional on the plaintiff obtaining approval to assume existing mortgages on terms satisfactory to the buyer in its 'sole and absolute discretion.' The plaintiff was unable to secure satisfactory terms from the mortgagees, declared the agreement null and void, and sought the return of its $2,000,000 deposit.

Both parties moved for summary judgment.

The court found that the plaintiff made a bona fide effort to complete the transaction and that the defendants' interpretation would render the 'sole and absolute discretion' clause meaningless.

The court granted summary judgment to the plaintiff, ordering the return of the deposit plus costs.

The plaintiff lender sought to enforce a second mortgage arising from a refinancing scheme involving the defendants’ former matrimonial home.

The self-represented defendant argued that the registered purchaser held title as a bare trustee for him and that the second mortgage had been executed without his knowledge and was therefore not binding.

The court rejected this evidence, finding the defendant had full knowledge of the financing structure and had participated in arranging the second mortgage.

Email correspondence and surrounding circumstances demonstrated that he acknowledged the debt and promised repayment after default.

The court held the second mortgage was valid and enforceable and ordered that the proceeds of sale held in trust be released to the plaintiff lender.

A creditor moved to dismiss a trustee’s fraudulent preference motion under s. 95 of the Bankruptcy and Insolvency Act as statute‑barred.

The trustee argued that the two‑year limitation period under the Limitations Act, 2002 was suspended while an appeal from the bankruptcy order was pending due to the automatic stay under s. 195 of the BIA.

The court held that the BIA stay pending appeal does not suspend or extend the limitation period under the Limitations Act, 2002.

Because the trustee commenced the preference motion more than two years after the bankruptcy order, the claim was statute‑barred.

In obiter, the court further held that if the settlement payments had been voided as preferences, the creditor would have been entitled to file a proof of claim for the full amount of its original judgment rather than the compromised settlement amount.

An interpleader application was brought by a municipality holding the remaining balance of a developer’s subdivision security deposit after the original developer defaulted.

Competing claims were made by the developer’s secured creditor and by a subsequent purchaser who completed the subdivision under a new agreement.

The court interpreted the original subdivision agreement, particularly provisions governing default and the return of securities upon voiding of the agreement.

It held that once the municipality declared the agreement null and void, the remaining security was contractually required to be returned to the original owner, subject to expenses.

As the secured creditor of that owner, the creditor was entitled to the remaining funds.

Following dismissal of a summary judgment motion brought by the defendant, the court determined the appropriate costs award for the successful plaintiff.

The plaintiff sought substantial indemnity costs relying on an offer to settle and the complexity of issues involving trust funds under the Construction Lien Act and limitation periods.

The court held the offer did not meet the criteria of Rule 49.10 and found no unreasonable conduct justifying substantial indemnity costs.

Emphasizing proportionality, reasonableness, and the amount in dispute, the court reduced the requested amount.

Costs were awarded to the successful plaintiff in the sum of $10,500 inclusive of disbursements and HST.