Gary Michael Caplan

The decision concerns a dispute over the return of a deposit following the termination of an agreement of purchase and sale (APS) for a property, in the context of a receivership and subsequent refinancing.

The court orders the return of the deposit to 2557905 Ontario Inc., with interest only from the date the deposit was placed in an interest-bearing account, and denies the listing broker's request for costs from the deposit.

The appellant, 2557904 Ontario Inc. (the stalking horse bidder), appealed a motion judge's order that dismissed the receiver's motion for an approval and vesting order (AVO) and instead approved the debtor's (1000093910 Ontario Inc.) motion to redeem a first mortgage.

The Court of Appeal found the motion judge erred by not ensuring 255 received compensation for costs thrown away and by granting provisional enforcement of the order after an appeal notice was filed.

The appeal was allowed in part, varying the order to require the debtor to pay $300,000 in compensation to 255 and setting aside the provisional execution.

The court also ordered that if the refinancing transaction does not close, the AVO for 255 will be granted.

The Court of Appeal heard motions in an appeal concerning the receivership of a debtor's property.

The appellant, a successful bidder, appealed two lower court orders that terminated its Stalking Horse Agreement and approved the debtor's refinancing transaction.

The motion judge referred several issues to a panel, including the appellant's standing and right to appeal, and whether the lower court erred in terminating the agreement and granting provisional enforcement.

The Court of Appeal continued the stay of provisional execution of the lower court orders, emphasizing the importance of maintaining the integrity of court-approved sale processes, especially given the absence of reasons from the motion judge for his initial decision.

The respondent (1000093910 Ontario Inc.) brought an urgent motion for the court to sign a draft order including a provisional execution, which was opposed by the prospective purchaser (2557904 Ontario Inc.).

The purchaser had filed an appeal and sought a stay of a prior endorsement.

The court considered the urgency due to significant daily costs and an expiring financing offer.

The court affirmed its jurisdiction under section 195 of the Bankruptcy & Insolvency Act to grant provisional execution, rejecting the purchaser's arguments that such relief was not properly requested or that jurisdiction lay solely with the Court of Appeal.

Balancing the irreparable harm, the court found that the prejudice to the applicant (Peakhill Capital Inc.), respondent, second mortgagee, and guarantors if provisional execution was not granted outweighed the harm to the purchaser.

The motion for provisional execution was granted.

The appellant, Bernard Drag, appealed a lower court order for specific performance of an Agreement of Purchase and Sale (APS) for a residential property.

Drag argued the APS became null and void because the home inspection condition was not waived by the contractual deadline.

The trial judge found that Drag's agent breached the contractual duty of honest performance by misrepresenting an accepted amending agreement and Drag's unavailability, which delayed and compromised the respondent's ability to deliver the waiver on time.

The Court of Appeal upheld the trial judge's finding that the respondent relied on these misrepresentations to his detriment, preventing the appellant from insisting on strict adherence to the timing condition.

The appeal was dismissed, and the order for specific performance was affirmed.

1000093910 Ontario Inc., a company in receivership, appealed the motion judge’s decision to decline hearing its cross-motion and to grant the receiver’s proposal for a public auction of its primary asset.

The cross-motion sought to vary the receivership order and enforce an earlier agreement of purchase and sale (APS).

The Court of Appeal dismissed the appeal, finding that the motion judge's discretionary decision not to hear the cross-motion was not erroneous, given the appellant's late service of materials and the low chance of success for the earlier APS.

The court also found no error in principle in the motion judge's approval of the receiver's proposed sales process, which included a "stalking horse" agreement, as it was fair, transparent, and aimed at optimizing the asset's price.

The Receiver, PricewaterhouseCoopers Inc., sought court approval for an asset purchase agreement (APA) and ancillary relief, including approval of its reports, interim statement, sealing of a confidential report, and fees.

The Debtor, 2563773 Ontario Inc., sought an adjournment to allow an unsuccessful bidder (810) to firm up financing for a higher offer.

The court denied the adjournment, deferring to the Receiver's judgment that the selected APA, though lower in price, offered greater certainty and was in the best interests of all stakeholders given the Debtor's history of delays and the unsuccessful bidder's lack of firm financing.

The court approved the APA, the Receiver's reports and activities, its fees, and the sealing order.

The defendant, Michael Garron Hospital (MGH), sought substantial indemnity costs for a dismissed motion brought by the plaintiffs concerning lease rights.

MGH argued for elevated costs due to alleged bad faith and an unaccepted offer to settle.

The court found no reprehensible conduct justifying substantial indemnity costs and ruled that the offer to settle did not trigger Rule 49.10 consequences for an elevated scale.

The court awarded MGH costs on a partial indemnity scale, fixing the amount at $40,000 all-inclusive, considering the motion's importance, moderate complexity, and the principle of fairness and reasonableness.

The appellants, Metro 1 Development Corporation Ltd. and its sub-tenant Athens, appealed a lower court decision that found Metro 1 in breach of a commercial lease for failing to operate a Tim Hortons restaurant and denied relief from forfeiture.

The Court of Appeal upheld the motion judge's interpretation of the lease, finding no implied term that would permit an alternative food service if a Tim Hortons franchise could not be maintained.

The court also found no error in the refusal to grant relief from forfeiture, rejecting arguments of bad faith by the respondent hospital and clarifying the scope of the duty of good faith in contract law.

The appeal was dismissed, and costs were awarded to the respondent.

This motion before the Court of Appeal for Ontario concerned whether an order made in a receivership proceeding, which approved bidding procedures and a stalking horse agreement for the sale of a property, and the motion judge's refusal to hear a cross-motion to approve an earlier agreement of purchase and sale, constituted an appealable order as of right under s. 193(c) of the Bankruptcy and Insolvency Act (BIA) or required leave under s. 193(e).

The Court applied the "operative effect" test, finding that the refusal to hear the cross-motion, despite being procedural, effectively jeopardized the property's value by depriving the Debtor of the ability to enforce a higher-value original agreement, thereby triggering the automatic right of appeal.

The motion for leave was dismissed as unnecessary, and the appeal was expedited.

The Plaintiffs (Metro 1 Development Corporation Ltd. and its subtenants) brought a motion seeking a declaration that their lease agreement with Michael Garron Hospital had not been breached, or alternatively, for relief from forfeiture.

The dispute arose from a 'use' clause in the lease requiring the operation of a Tim Hortons restaurant, which became impossible after the termination of a separate Product Licence Agreement with TDL Group Corp. The Plaintiffs argued for an implied term in the lease to allow for a different food service and contended that the Hospital acted in bad faith.

The court dismissed the motion, finding no basis to imply a term that contradicted the express language of the lease and denying relief from forfeiture based on the Plaintiffs' conduct, the gravity of the breach, and the balance of interests.

The plaintiffs sought a Mareva injunction against multiple defendants in a dispute involving cryptocurrency investments.

The motion was dismissed for the third time, as the plaintiffs failed to provide sufficient evidence of a strong prima facie case or a real risk of asset dissipation by the defendants.

The court found the dispute to be primarily contractual, not indicative of fraudulent asset flight.

Costs were awarded to the defendants on a substantive indemnity scale.

Lynne Foulidis appealed a Superior Court order granting a charging order against her Toronto residence to Jodi L. Feldman Professional Corporation for $664,323.38 in legal fees.

The charging order was granted to secure outstanding legal fees from family litigation.

Lynne argued the property was no longer in existence for the purpose of the charging order due to a prior transfer to George Foulidis, that the lawyer's contribution was not substantial, and that there was no risk of non-payment.

Jodi L. Feldman Professional Corporation cross-appealed on costs.

The Court of Appeal dismissed Lynne's appeal, upholding the charging order, finding that the property was in existence (subject to a triable issue of fraudulent conveyance), the lawyer's contribution was instrumental, and there was a clear refusal to pay fees.

The cross-appeal on costs was also dismissed, but costs of the appeal were awarded to Jodi L. Feldman Professional Corporation.

The plaintiffs sought an adjournment of a fixed trial date in two related actions alleging solicitor negligence and breach of fiduciary duty against the defendant lawyer.

The request was based on a recent change of defence counsel due to an "unavoidable conflict of interest" and the plaintiffs' expert's inability to produce a report in time.

Despite both counsel agreeing to the adjournment, the court, noting the parties' advanced age and previous judicial directives for expeditious resolution, declined the request, emphasizing that adjournments of fixed trial dates are granted only in extenuating circumstances and that the delay was not sufficiently justified.

The plaintiffs brought a motion to enforce a prior judgment granting permanent injunctions against the defendant for a years-long campaign of internet harassment and defamation.

The plaintiffs sought orders to remove new defamatory publications that came to their attention after the original summary judgment motions were argued.

The defendant opposed the motion, arguing the court was functus officio and raising other procedural objections.

The court rejected the defendant's arguments, holding that while it is functus officio regarding the claims decided in the judgment, it retains jurisdiction to enforce its orders.

The motion was granted.

This endorsement addresses a costs motion following the dismissal of a contempt motion.

The respondents, who had successfully defended against the contempt motion, sought costs on a substantial indemnity basis.

The applicants objected, citing the respondents' non-compliance with prior orders and improper filing of materials.

The court, exercising its broad discretion under the Courts of Justice Act, declined to award any costs, emphasizing the acrimonious nature of the dispute and the concern that a costs award would further inflame the situation and potentially lead to more inappropriate motions.

This endorsement finalized 14 dismissal orders and one additional order arising from a case management conference.

The respondent, Nadire Atas, submitted improper and vexatious comments on the draft orders, repeatedly challenging the orders themselves or alleging judicial bias, rather than addressing their form.

The court signed 13 draft orders based on the moving party's submissions, with directions for resolving minor issues on the remaining orders.

The court also issued orders to manage the respondent's improper communications to counsel, directing counsel not to act as a conduit for vexatious arguments.

Further directions were given to the respondent regarding her failure to provide transcript status for a contempt appeal and failure to file a defence in another action, with warnings of potential contempt for non-compliance.

The court addressed Nadire Atas's non-compliance with a direction to provide blacklined draft orders and explanations for orders made at a case management conference.

Instead of complying, Atas submitted arguments contesting the orders and making allegations of bias, which the court deemed vexatious and defiant.

The court finalized the orders based on the drafts prepared by the moving party, Gary Caplan, and issued strict warnings to Atas regarding improper communications and re-litigating decided issues during the order settlement process.

The court also followed up on a delay in the release of transcripts.

This endorsement addresses a dispute over the form and content of orders prepared to implement prior dismissal orders made at a case management conference.

The self-represented respondent, Ms. Atas, raised vexatious arguments contesting the prior dismissal orders and asserting a lack of jurisdiction.

The court found her submissions irrelevant and vexatious, noting her consistent pattern of making procedural matters cumbersome.

The court refused to revisit the merits of the dismissal orders and directed Ms. Atas to provide properly blacklined draft orders with explanations by a tight deadline if she had legitimate concerns about the form and content, otherwise the orders would issue as granted.

This case management endorsement addresses multiple ongoing proceedings involving a vexatious litigant, Nadire Atas.

The court made several orders and directions, including confirming the open court principle for case management conferences, dismissing numerous actions against Peoples Trust and other defendants due to the litigant's failure to comply with "Chavali requests" (orders to demonstrate intent to continue litigation), and setting deadlines for filing defence and bringing a motion for a stay of summary judgment proceedings.

The court also addressed the litigant's repeated allegations of bias and jurisdictional challenges, dismissing them as meritless and vexatious.

Directions were given regarding outstanding costs orders and the process for appealing interlocutory rulings.