George Boyd Aitken

John Przybytek, having successfully obtained an order to discharge an invalid and unconscionable mortgage, sought substantial indemnity costs against 3002071 Canada Inc., 1457563 Ontario Inc., and lawyer Claude-Alain Burdet personally.

The court awarded costs against 3002071 Canada Inc. only, on a substantial indemnity basis, for fees and disbursements incurred up to March 11, 2019, totaling $16,570.00.

The request for costs against Mr. Burdet personally was denied, as the court found that the applicant's own counsel's firm had engaged in similar problematic conduct regarding a second mortgage, creating an ironic basis for the argument.

Following a successful application to discharge a mortgage, the applicant sought costs on a substantial indemnity basis, including a request for costs against the respondent's lawyer personally under Rule 57.07(1).

The court noted that the respondent's lawyer had not been given a reasonable opportunity to make representations as required by Rule 57.07(3).

The court issued directions giving the applicant the option to withdraw the request or confirm it, in which case the respondent's lawyer would be given an opportunity to request a hearing and retain counsel.

The applicant sought to discharge a $50,000 mortgage registered against his property by the respondent.

The respondent, operated by the son of the applicant's former lawyer, brought a counter-application seeking repayment of various loans.

The court declined to join the proceedings, finding the counter-application required a trial.

On the main application, the court found the mortgage was invalid and unconscionable because there was no contract for debt, the applicant was unaware of the mortgage, and there was an undisclosed relationship between the applicant's lawyer and the lender.

The mortgage was ordered discharged and the counter-application was converted into a separate action.

This endorsement addresses procedural issues arising from a "counter-application" filed by the respondent and a joint applicant.

The court clarified that "counter-applications" do not exist under the Rules of Civil Procedure, but treated the filing as an irregularity in commencing a new application.

The hearing was adjourned, and orders were made regarding the filing of cross-examination transcripts, confirmation forms, and crucially, that the "counter-application" would not be heard unless the applicant's sister, Helen Butt, was properly served due to her potential interest in the relief sought.

The applicant, a commercial tenant, sought relief from forfeiture, an order compelling arbitration, and rent abatement after the respondent landlord issued a notice to quit upon the expiration of their lease.

The court found that relief from forfeiture was unavailable because the lease had expired by its terms, not due to a breach or default by the tenant.

The court also determined that the parties had abandoned their agreement to arbitrate by failing to appoint an arbitrator within the stipulated timeframe.

Consequently, the claims for arbitration and rent abatement, which was an issue for arbitration, were dismissed.