Gary Michael Caplan

The applicant, a secured creditor owed over $7 million under a promissory note, applied for the appointment of a receiver and manager over all the assets, property, and undertaking of the respondent.

The applicant's security interest was limited to a single US patent and the product resulting from working that patent.

The court dismissed the application, finding insufficient evidence to establish that it was just and convenient to appoint a receiver over the entire business, especially given the lack of information regarding the value of the secured collateral, the scope of the respondent's assets, and why a private appointment would not suffice.

The plaintiff brought an action for breach of contract, breach of fiduciary duty, and unjust enrichment regarding a real estate joint venture.

The plaintiff had secured financing for the purchase of a property and was promised a 50% carried interest in the defendant corporation's share of the profits.

When the property was sold 10 years later, the defendant corporation distributed the majority of its profits to related parties, paying the plaintiff significantly less than his 50% entitlement.

The court found that the defendant breached the contract and its fiduciary duties, and that the related parties were unjustly enriched.

The court pierced the corporate veil to hold the individual defendant personally liable, awarding the plaintiff $1,297,500 in damages.

The plaintiff lien claimant and the defendant first mortgagee brought cross-motions to determine priority between the mortgage and the construction lien.

The court held that the mortgage was taken solely to finance the acquisition of the land, not to secure the financing of an improvement, and therefore had full priority as a prior mortgage under s. 78(3) of the Construction Act.

The court also held that the mortgagee's unilateral deletion of the plaintiff's claim for lien from title under s. 75 of the Land Titles Act was invalid, as it circumvented the specific discharge procedures in the Construction Act.

The plaintiff sought an interlocutory injunction to reinstate him as president and co-director of a corporation following a dispute over a share purchase agreement.

The plaintiff had previously signed an irrevocable resignation as part of a settlement.

The court dismissed the motion, finding the plaintiff failed to establish a strong prima facie case to resile from his resignation, and noted he had adequate remedies under the Business Corporations Act.

The applicant, the Ontario Securities Commission, sought an order under section 129 of the Securities Act to appoint a receiver and manager over all assets and properties of the respondents, a group of interconnected real estate investment entities.

The Commission alleged that the respondents diverted investor equity from specific limited partnership projects to unrelated properties, contrary to the limited partnership agreements and marketing materials.

The court rejected the respondents' argument that a strong prima facie case was required, holding that the Commission only needed to show serious concerns of a breach.

Although the court ruled that investor interview transcripts were hearsay and inadmissible for the truth of their contents, it found sufficient evidence of improper fund diversion to justify the receivership.

The court appointed the receiver over all properties, declining to exempt specific properties held by secured creditors, to ensure coordinated oversight.

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 appellants appealed a Notice of Proposal to revoke their registrations as a real estate brokerage and broker under the Trust in Real Estate Services Act, 2002.

The Registrar issued the notice after discovering a $341,772.81 shortfall in the brokerage's trust account.

The Tribunal found that the appellants failed to maintain proper trust accounts, misappropriated trust funds for personal and business expenses, and breached an immediate suspension order.

Concluding that the appellants lacked financial responsibility and could not be expected to carry on business in accordance with the law and with integrity and honesty, the Tribunal dismissed the appeal and directed the Registrar to carry out the revocation.

The moving party brought a motion for leave to appeal the order of Casullo J. dated December 4, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

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 moving party, a declared vexatious litigant, emailed the court requesting directions to schedule a motion to set aside the vexatious litigant judgment.

The court noted that the judgment prohibits the moving party from instituting any motion without leave under s. 140(3) of the Courts of Justice Act, which must be obtained from the case management judge.

The court appointed Justice W. S. Chalmers as the Case Management Judge and directed the moving party to make any requests to him.

The plaintiffs brought a motion for production orders and examination of the defendants in aid of an existing Mareva injunction and Anton Piller order.

The only contentious issue was a request to order a non-party exchange to provide information regarding the defendants' assets.

The court granted the order, finding it necessary in aid of execution of the Mareva injunction, and rejected the defendants' argument that the request was an improper attempt to gather evidence for a contempt motion.

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.