Elaine S. Peritz

The plaintiff corporation brought a motion for an equalization payment of $320,713.66 from the defendant corporations, arising from a prior trial decision regarding the division of corporate assets between two siblings.

The defendants brought a cross-motion seeking to recalculate the equalization payment to include the value of preference shares, which would result in the plaintiff's principal owing $2,625,000.

The court granted the plaintiff's motion and dismissed the defendants' cross-motion, finding that the calculation of the equalization payment and the exclusion of the preference shares had already been determined in prior proceedings and were therefore res judicata.

The court also resolved several ancillary issues, including the transfer of burial plots and the return of original documents, and prohibited the parties from commencing further litigation without leave.

The Trustee in bankruptcy moved for orders that the appellants (related to the bankrupt Medcap) did not have an automatic right of appeal under BIA s. 193(a) or (c) from a lower court order, required leave to appeal, and should be denied leave.

The appellants argued that a single judge lacked authority to make such a determination, citing R. 61.16(2.2) of the Rules of Civil Procedure.

The court held that the lower court's order was purely procedural, thus no automatic right of appeal existed under BIA s. 193(a) or (c).

The court further held that a single judge has the authority to determine appeal rights under BIA s. 193 due to the doctrine of federal paramountcy, which overrides provincial rules like R. 61.16(2.2) in bankruptcy matters.

Leave to appeal was denied as the proposed appeal lacked merit, did not raise issues of general importance, and would hinder bankruptcy proceedings.

The applicant brought an oppression application seeking an order that the respondent corporation pay $999,007.50 to redeem her preference shares.

The respondents argued the payment would render the corporation insolvent under s. 32(2) of the Business Corporations Act and sought a stay pending a related appeal.

The court found the appeal had already been dismissed and did not affect the preference shares.

The court also rejected the insolvency argument, finding the corporation had sufficient assets and equity.

The court ordered the corporation to pay the redemption amount, finding it unnecessary to determine if the failure to pay constituted oppression.

This appeal arose from a dispute between siblings over inherited family companies.

The trial judge found that the parties had an agreement regarding company ownership, that the appellant breached his fiduciary duty to the respondent, and was unjustly enriched.

The appellants challenged these findings, arguing there was no binding agreement, no fiduciary relationship, and that the promissory estoppel claim was invalid and statute-barred.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on the existence of an ownership agreement, unjust enrichment, and breach of fiduciary duty, finding no palpable and overriding error.

The Court noted that the dismissal of the promissory estoppel claim did not affect the outcome.

The Court of Appeal for Ontario issued a costs endorsement following a prior decision where an appeal was allowed in part and a motion to quash was dismissed.

The appellant sought full indemnity costs for the appeal, motion to quash, and the application below, citing success on appeal and a mortgage agreement clause.

The respondents sought partial indemnity costs for the appeal and motion to quash, and costs for a successful stay motion and an adjournment caused by the appellant.

The court declined to apply the contractual full indemnity costs provision due to the appellant's moderate success and conduct.

It ordered no costs for the appeal or the motion to quash, reduced the costs payable to the respondents from the application below by 25%, and ordered the appellant to pay the respondents' partial indemnity costs for the stay motion and the adjourned appeal.

The respondents defaulted on a second mortgage held by the appellant.

Following a fire that rendered the property uninhabitable, the appellant took possession without notice.

The application judge found the appellant did not take 'peaceable possession' and ordered the appellant to return possession, fix the redemption amount, and assign the mortgage to a new lender.

The appellant appealed but failed to comply with the assignment order.

The Court of Appeal held that the application judge erred by applying the criminal law definition of 'peaceable possession' to a mortgage enforcement context.

The Court found the appellant did take peaceable possession because the property was uninhabitable and vacant.

Consequently, the appellant was entitled to property management fees.

However, due to the appellant's failure to comply with court orders, the Court exercised its discretion to uphold the requirement that the appellant assign the mortgage upon payment of the redemption amount.

Following a lengthy trial regarding the ownership of a family business, the successful plaintiff sought costs of approximately $1.57 million.

The plaintiff had served an offer to settle seven days before trial, which the defendant rejected.

The court exercised its discretion under Rule 57.01 to award substantial indemnity costs from the date of the offer, finding the offer was reasonable and the defendant's conduct unnecessarily increased costs.

After deducting amounts related to separate actions, the court fixed costs payable to the plaintiff at $1,306,757.90.

The plaintiff and defendant, siblings, disputed the ownership of three real estate holding corporations left to them by their father.

The plaintiff claimed they reached an agreement in 2014 to divide ownership, with the plaintiff taking one corporation and the defendant taking the other two, and that she signed a renunciation of her interest in a family trust based on this agreement.

The defendant argued the agreement was only for a temporary division of management.

The court found that the parties were in a fiduciary relationship, intended to divide ownership, and conducted themselves as sole owners for seven years.

The court granted a declaration that the plaintiff is the beneficial owner of the defendant's shares in the chosen corporation based on contract and proprietary estoppel.

The appellant sought an adjournment of their appeal and motion to quash due to a breakdown in the solicitor-client relationship and uncertainty regarding new counsel's availability.

The Court of Appeal granted the adjournment, conditional on the appellant paying $7,000 in outstanding costs by a specified date, failing which the appeal would be dismissed.

The moving party, 11534599 Canada Corp., sought review of a motion judge's order that granted an extension of time to perfect its appeal on terms that suspended the payment of per diem interest for a specific period.

The original appeal stemmed from an order finding 115 in unlawful possession of a property and requiring mortgage assignment and payment with interest.

The motion judge had imposed the interest suspension to address prejudice caused by 115's delay and attempts to impose preconditions on the mortgage assignment. 115 argued that the motion judge, as a single judge, lacked jurisdiction to vary the original order by suspending interest.

The Court of Appeal dismissed the review motion, holding that the motion judge's order merely suspended interest pending the appeal's hearing and did not permanently alter the substance of the original order.

This term was deemed necessary in the interests of justice to grant the extension.

The appellant, 11534599 Canada Corp., sought a stay pending appeal of an order requiring it to provide possession of a property to the respondents and to assign a mortgage.

The original order was based on a finding that the appellant had taken illegal possession of the property, contrary to the Mortgages Act, and thus could not rely on the exception in s. 2(3) to refuse assignment.

The court applied the three-part test for a stay (serious issue, irreparable harm, balance of convenience).

While a serious issue regarding the interpretation of "peaceable possession" was found, the court determined the appellant would not suffer irreparable harm given the respondents' undertaking not to sell the property and the existing equity.

The balance of convenience favored the respondents, who would suffer significant hardship if they lost their principal residence.

The motion for a stay was dismissed.

Dale Ottewell, a creditor in the bankruptcy of Christine Ann Davidson, appealed the dismissal of his motions for leave to commence a proceeding under s. 38 of the Bankruptcy and Insolvency Act (BIA) and to examine individuals under s. 163(2) of the BIA.

The s. 38 motion sought to include a house, beneficially owned by the bankrupt, in the estate, despite a prior family law order where Ottewell consented that the house would not be part of the bankrupt's property.

The Court of Appeal dismissed the appeal, finding no error in the lower court's discretionary refusal to grant leave under s. 38, as Ottewell failed to demonstrate sufficient merit and was attempting to indirectly contravene a prior consent order.

Leave to appeal the s. 163(2) motion was also denied as it concerned a procedural matter without general importance.

The plaintiff brought a motion for a certificate of pending litigation and disclosure of real estate transactions regarding a property he previously occupied.

The defendant second mortgagee brought a cross-motion to dismiss the action against it and for a judicial sale of the property.

The court dismissed the plaintiff's motion, finding damages were an adequate remedy and the plaintiff was attempting to relitigate a prior default judgment in a mortgage enforcement action.

The court granted the defendant's motion, dismissing the action against it on the basis of res judicata and ordering a judicial sale of the property.

The appellants appealed an order dismissing their motion for leave to commence a derivative action under s. 246 of the Business Corporations Act.

The motions judge found the motion was statute-barred because it was brought after the expiry of the limitation period.

The Divisional Court dismissed the appeal, holding that the motions judge correctly applied the Supreme Court of Canada's decision in the CIBC trilogy, which established that a nunc pro tunc order is not available when a motion for leave is filed after the limitation period has expired.

The plaintiffs, shareholders in several real estate corporations, sought leave to commence a derivative action and amended their statement of claim to add new causes of action following the discovery of a multi-million dollar fraud by a co-investor.

The defendants moved to strike the new claims and opposed the derivative action.

The court held that the motion for leave to commence a derivative action was statute-barred under the Limitations Act, 2002, applying the Supreme Court's reasoning in CIBC v. Green regarding the unavailability of nunc pro tunc orders to circumvent expired limitation periods.

The court also struck the new claims for breach of contract, breach of fiduciary duty, and negligence as statute-barred, but allowed the unjust enrichment and oppression claims to proceed.

The respondents sold trademarks and a customer base to a corporation under a purchase agreement, with the purchase price payable by post-dated cheques.

The appellant, the sole director of the corporation, signed the agreement personally under a clause requiring him to cover any bounced cheques.

After the corporation went into receivership and cheques bounced, the respondents obtained partial summary judgment against the appellant on the personal guarantee.

The appellant appealed, arguing inadequate reasons, lack of a liability finding against the corporation, and that the clause was not a guarantee.

The Court of Appeal dismissed the appeal, finding the reasons adequate, noting a guarantee is enforceable even if the principal debtor is bankrupt, and concluding the clause clearly constituted a personal guarantee.

The appellant appealed a decision finding that the respondent Bank was a holder in due course of a cheque.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the Bank took the cheque in good faith and without notice of any defect in title when it was deposited.

The Court rejected the argument that the subsequent issuance of a bank draft constituted the negotiation of the cheque by the Bank.