F. Scott Turton

The plaintiffs brought a motion to strike the defendants' Statement of Defence for failure to answer undertakings from discovery, and sought default judgment or alternatively summary judgment on loan claims.

The court granted default judgment against the individual defendant Moiz Noorani for three personal unsecured loans totaling US$219,000, but declined to grant judgment against the corporate defendants.

The court found that the individual defendant's three-and-a-half-year failure to answer undertakings, coupled with breach of court orders, justified striking the defence and entering default judgment.

However, the corporate defendants were not parties to the loan agreements and the court found insufficient basis to hold them liable on the materials presented.

The total judgment against the individual defendant was US$629,221.92, including principal and accrued interest calculated to the date of judgment.

Costs of $15,000 were awarded to the plaintiffs.

An appeal from a trial judgment dismissing claims by a steel company against a former employee who established a competing business.

The trial judge found that the employee was not a fiduciary and therefore could not breach fiduciary duties.

Although the employee breached employment duties of good faith, loyalty, and fidelity by misappropriating business documents (constituting conversion), the trial judge found no damages were proven.

The appellate court dismissed the appeal, finding the trial judge's findings were open to her on the record and that her reasons were adequate for meaningful appellate review.

This decision concerns a dispute between two brothers, David Ang and Mark Ang, over the ownership and management of Bolt Technologies Incorporated (formerly Second Closet Incorporated).

David Ang claimed an equal share in the company based on an alleged oral agreement and representations by Mark Ang, as well as claims of wrongful dismissal and oppression under the Canada Business Corporations Act.

The court found no enforceable oral agreement or representation, held that the executed Unanimous Shareholders Agreement (USA) governed the parties' rights, and dismissed David's claims.

The court also found that David had engaged in misconduct, including fabricating evidence and breaching fiduciary duties, and allowed Bolt's counterclaim for damages and punitive damages.

This decision concerns the allocation of costs and prejudgment interest following a construction lien action.

The court awarded partial indemnity costs to the plaintiff, Zagros Homes Development Inc., against Cando 1 Construction Inc., and substantial indemnity costs to the Owners (Ernest Mbenkum and Alliance Lipenja) against both Zagros and Cando.

The court also exercised its discretion to award prejudgment interest at 2.5% per annum, higher than the statutory rate, due to market conditions.

The decision clarifies the approach to costs where parties have not succeeded against all defendants and addresses the application of prejudgment interest rates in the post-pandemic context.

The court considered a claim for lien and breach of contract by Zagros Homes Development Inc. against the owners and construction manager/general contractor of a residential construction project.

The court found that Zagros had a valid subcontract with Cando 1 Construction Inc., that Cando breached the contract by terminating it and hiring the sub-subcontractor directly, and that Zagros was entitled to damages for unpaid work.

However, the court found that Zagros failed to prove the timeliness of its lien claim, and thus the lien was declared expired and vacated.

This is a costs endorsement following a trial where the plaintiff, Titus Steel Company Limited, was largely unsuccessful in its claims against the defendants, Wayne Robert Hack and his companies.

The primary issue at trial was whether Mr. Hack was a fiduciary and breached obligations by starting a competing business, which the court found he was not.

The plaintiff's only success was minimal, related to the taking of documents by Mr. Hack, which was easily proven.

The defendants, as the successful party, were presumptively entitled to costs.

They sought substantial indemnity costs due to unproven allegations of dishonesty, but the court declined to award them, citing the "rare and exceptional" nature of such awards and the defendants' own concerning conduct regarding the documents.

The court awarded partial indemnity costs to the defendants, fixing the quantum at $161,264.

The applicant sought costs of $17,440.19 for a motion to consolidate civil and family proceedings.

The parties reached a consent agreement on the day of the motion.

The court found the motion was premature and could have been avoided if counsel had conferred in advance.

However, the respondents failed to comply with the rules by not filing responding materials or filing them late.

The court awarded reduced costs of $4,500 to the applicant, payable equally by the respondents.

The plaintiff, Titus Steel Company Limited, sued its former Vice President, Wayne Hack, and his new companies (Progressive Armor), alleging breach of fiduciary duty, breach of employment duties (fidelity, loyalty, good faith), misappropriation of confidential documents, conversion, and willful misconduct/gross negligence.

The court found that Hack was not a fiduciary and therefore did not breach any fiduciary duties by competing or soliciting customers post-resignation.

However, Hack did breach his employment duties and committed conversion by copying, deleting, and retaining Titus's business records.

The court found no damages for breach of confidence or the employment breaches related to documents, as Titus failed to prove loss or unauthorized use of confidential information, and a prior payment covered recovery costs.

Claims of willful misconduct/gross negligence regarding two clients were also dismissed due to lack of proof or the employer's own inconsistent conduct.

The court ordered the return of all business records to Titus.

The Cardillo Parties sought review of a chambers judge's decision that denied them an automatic right of appeal under the Bankruptcy and Insolvency Act (BIA) and refused leave to appeal.

The chambers judge had found the underlying order to be procedural and that a single judge had the authority to determine the right of appeal and deny leave, applying the doctrine of paramountcy.

The Court of Appeal dismissed the Cardillo Parties' motion, affirming the chambers judge's findings that the decision was procedural, a single judge had the authority, and paramountcy applied, thus denying the appeal.

The appellant, Medcap Real Estate Holdings Inc., appealed the dismissal of its motions to stay or dismiss actions brought by Bennington Financial Corp. and Heffner Investments Limited.

Medcap argued that the respondents breached the immediate disclosure rule by failing to disclose a verbal agreement requiring any settlement with Medcap to include all creditors.

The Court of Appeal affirmed the motion judge's finding that the agreement did not need to be disclosed as it did not fundamentally alter the litigation landscape or the adversarial relationship between the parties.

The appeals were dismissed, and costs were awarded to the respondents.

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.

This endorsement addresses costs for two related motions within a bankruptcy proceeding.

The first, a Claim Examination Motion brought by certain creditors against the Trustee, was withdrawn.

The second was a Trustee's motion to compel John Cardillo, the designated person for the bankrupt corporation, to attend an examination and produce documents, which the Trustee largely succeeded on.

The court awarded partial indemnity costs of $14,435.75 to the Trustee against the withdrawing creditors, finding their motion unnecessary and poorly founded in law.

For the second motion, the court awarded substantial indemnity costs of $7,580.04 to the Trustee against John Cardillo, citing his persistent and reprehensible failure to fulfill his statutory duties under the Bankruptcy and Insolvency Act.

Medcap Real Estate Holdings Inc. appealed a bankruptcy order made against it, arguing the application judge erred in not exercising discretion to dismiss the application under s. 43(7) of the Bankruptcy and Insolvency Act.

Medcap claimed it could pay its debts, the application was improperly motivated, and a bankruptcy would serve no purpose.

The Court of Appeal dismissed the appeal, finding Medcap failed to prove its ability to pay all debts, that the applicants had an improper motive, or that a bankruptcy would be purposeless, thereby upholding the application judge's discretionary decision.

The defendants and third party brought a motion for security for costs against the corporate plaintiffs, who operated a fitness club before defaulting on their commercial lease and equipment leases.

The court found there was good reason to believe the plaintiffs had insufficient assets in Ontario to pay costs.

The plaintiffs failed to demonstrate sufficient assets, impecuniosity, or a good chance of success on the merits of their conspiracy and conversion claims.

The court ordered the plaintiffs to post $80,000 in security for costs for each of the Crunch defendants, the Church defendant, and the third party.

Five creditors brought an application for a bankruptcy order against the respondent debtor.

The court found that two of the applicants, Groia and Anne Wilson, had debts owing in excess of $1,000 at the time of the application.

The court also found that the respondent had committed an act of bankruptcy by ceasing to meet its liabilities generally as they became due, given the multiple outstanding debts and judgments against it.

The court declined to exercise its discretion to dismiss the application, noting the respondent's failure to prove its ability to pay its debts and the presence of suspicious circumstances regarding its property dealings.

The bankruptcy order was granted.

The plaintiffs brought a motion for summary judgment seeking $1,580,000 owed under a Promissory Note and secured by a mortgage.

The defendants argued that the debt was subject to various set-offs, including unpaid rent, and that the Promissory Note was part of a broader context of dealings.

The court found that the Promissory Note was not a bill of exchange but a valid loan agreement containing an entire agreement clause, which precluded the defendants' claims for legal and equitable set-off.

Summary judgment was granted for the principal amount, but the defendants were granted leave to proceed with their counterclaim regarding a specific contractual set-off for rents against accrued interest.

The plaintiffs brought a motion for summary judgment to enforce a Promissory Note for $293,210 against the defendants.

The defendants argued that the note was invalid and raised a counterclaim for set-off based on various alleged debts.

The court found that the defendants' evidence lacked credibility, the counterclaim was statute-barred and without merit, and the Promissory Note was valid and enforceable.

Alternatively, the court found the defendants liable on the basis of unjust enrichment.

The motion for summary judgment was granted and the counterclaim was dismissed.

Following the settlement of a construction lien action for $17,000, the parties disputed the quantum of costs payable to the plaintiff.

The plaintiff sought over $22,000, while the defendant argued costs should be limited to Small Claims Court tariffs because the plaintiff failed to take the least expensive course of action.

The court awarded the plaintiff $8,000 in costs, finding that while the plaintiff should have transferred the matter to Small Claims Court earlier, the defendant also delayed in bringing its motion to declare the lien expired.

The plaintiff, Heffner Investments Limited (HIL), brought a motion for summary judgment seeking repayment of a $2.5 million debt secured by a promissory note and a second mortgage.

The defendant, Medcap Real Estate Holdings Inc. (Medcap), argued that the alleged $2.5 million debt was a sham, part of a single $2.1 million loan that had already been repaid, and that the plaintiff had breached an agreement to assist with refinancing.

The court found significant factual disputes and credibility issues between the parties regarding the nature and origin of the debt, the terms of their agreement, and the plaintiff's alleged breach.

Concluding that these issues could not be fairly resolved without a full trial, the court dismissed the plaintiff's motion for summary judgment.