Doug Bourassa

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.

The moving party brought a motion to determine whether the appellant required leave to appeal an order dismissing a claim for occupation rent against a receiver.

The Court of Appeal held that the appellant had an automatic right of appeal under s. 193(c) of the Bankruptcy and Insolvency Act because the appeal directly involved property exceeding $10,000 in value.

The motion was dismissed, and the appeal was permitted to proceed without leave.

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.

The appellant appealed an order of the motion judge.

The Court of Appeal found no error in the motion judge's conclusion that there was no viable defence on the record and that the interests of justice were considered.

The appeal was dismissed with costs awarded to the respondent.

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.

The court-appointed receiver of a non-profit housing co-operative moved for approval of an agreement of purchase and sale with a non-profit corporation.

The sale would preserve the property as affordable housing but required an increase in occupancy fees to fund necessary repairs.

A competing bidder submitted a revised offer after the bid deadline, matching the financial terms and offering a one-year freeze on occupancy fees, but without a long-term commitment to affordable housing.

Applying the Soundair test and considering the special factors for co-operative housing, the court found the receiver's process was fair and the recommended offer was not improvident.

The motion to approve the sale was granted.

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.

The appellant appealed a decision finding that service of process on its receptionist was proper under the Hague Convention.

The Court of Appeal dismissed the appeal, holding that the propriety of service was a factual issue depending on whether the receptionist was in control of the business, and there was no evidence before the motion judge to suggest she was not.

The appellants appealed a summary judgment decision granting the respondent bank recovery of a credit card debt.

The central issue was whether the action was barred by the six-year limitation period.

The Divisional Court upheld the motions judge's finding that the limitation period began to run when the bank terminated the credit card agreement and the entire debt became immediately payable, rather than on the date of the initial missed minimum payment.

The appeal was dismissed.

The moving party, 2205305 Ontario Inc., was unsuccessful on an urgent motion to stay an order approving a receiver's sale of properties.

The respondents sought costs against the moving party's parent corporation, Romspen Investment Corporation, arguing it was the real moving party and the moving party was a shell corporation.

The Court of Appeal dismissed the request for costs against the non-party, finding no fraud or abuse of process to justify lifting the corporate veil, and fixed costs against the moving party on a partial indemnity scale.

The appellant financed the purchase of two trucks and perfected its purchase money security interests under the PPSA.

The trucks were leased to third parties, insured by the respondent, and subsequently stolen.

The respondent paid the actual cash value of the trucks to the insureds and claimed salvage rights under statutory condition 6(7) of the Insurance Act.

The Court of Appeal held that the appellant's perfected security interests had priority over the respondent's salvage rights.

Section 4(1)(c) of the PPSA and statutory condition 6(7) do not operate to extinguish a prior perfected security interest, and the transfer of title to the insurer was not a sale in the ordinary course of business.