Gerald Tobias Matlofsky

The plaintiff mortgagor brought an urgent interlocutory motion to set aside a Notice to Vacate and a default judgment obtained by the defendant mortgagee.

The mortgagor argued the mortgage was unenforceable because the funds were used to pay out prior mortgages that were part of a money laundering scheme orchestrated by her pastor, of which she was unaware.

The court dismissed the motion to set aside the default judgment, finding no arguable defence on the merits, no plausible excuse for the default, and no evidence that the mortgagee was involved in or should have been aware of any alleged fraud or money laundering.

As the default judgment stood, the injunction motion was also dismissed.

The defendants brought a motion to set aside a previous summary judgment order, arguing they were unaware of the court date, had repeatedly requested a French-speaking lawyer, and were not properly served.

They also claimed an arguable defence regarding improvident property sales and excessive expenses.

The court dismissed the motion, finding no evidence of accident, mistake, or insufficient notice, and noted the defendants' significant delays and failure to file responding materials.

The court also found no merit to the alleged defences, including the unpleaded claim of improvident sale, and considered the prejudice to the plaintiffs.

The moving party, LSN Investments Inc., brought a motion for leave to appeal an order of Justice Perell.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the fixed amount of $4,985.56.

Following a successful summary judgment motion in an abortive real estate transaction, the plaintiffs sought partial indemnity costs of $35,668.79.

The defendant requested a stay of the costs assessment pending the resolution of crossclaims and third-party claims, or alternatively, a reduction in the quantum.

The court dismissed the request for a stay, finding the main action was concluded.

The court awarded the plaintiffs their requested costs, noting the amount was reasonable and within the defendant's expectations, as evidenced by the defendant's own costs outline of $43,670.00.

The plaintiffs (purchasers) brought a motion for summary judgment for the return of their $60,000 deposit after an abortive real estate transaction, and for the dismissal of the defendant vendor's counterclaim for breach of contract.

The agreement of purchase and sale was conditional on financing and review of a status certificate.

The conditions were not waived in writing by the deadline, rendering the agreement null and void.

The vendor argued the purchasers waived the conditions by their conduct.

The court granted summary judgment, finding no genuine issue requiring a trial, as the conditions were not waived and the purchasers made no misrepresentations.

The deposit was ordered returned and the counterclaim dismissed.

The plaintiffs brought a motion to continue an interim Mareva injunction against the defendants following an aborted real estate transaction.

The plaintiffs also moved to file fresh evidence and for security for costs.

The court found the plaintiffs established a strong prima facie case and a serious risk of asset dissipation, continuing the injunction against the defendants' real estate properties.

The motions to file fresh evidence and for security for costs were dismissed.

The defendant Royal Bank of Canada moved for summary judgment to dismiss a claim by the plaintiff Foodinvest Limited.

Foodinvest sought to recover wire payments made to fraudulent Polish accounts for meat products that were never delivered.

Foodinvest alleged the Bank was negligent in not warning of the fraud or investigating the accounts.

The Bank argued its liability was limited by contract to negligence, and no negligence occurred, nor was there a duty to investigate foreign accounts or warn the customer, especially given FINTRAC obligations to not 'tip off' suspicious clients.

The court found the Master Client Agreement binding, that the Bank had no duty to warn or investigate external fraud, and that the plaintiff failed to provide expert evidence of a breach of banking standard of care.

The motion for summary judgment was granted, and the action dismissed with costs to the defendant.

Following an order setting aside a default judgment, the court determined the costs thrown away payable to the plaintiff and the costs of the motion payable to the defendant.

The plaintiff was awarded $16,500 in costs thrown away on a substantial indemnity basis, after reductions for unrelated enforcement proceedings and a recoverable sheriff's fee.

The defendant was awarded $3,500 in costs for the motion on a partial indemnity basis, as the court found the defendant's settlement offer did not trigger Rule 49 consequences and success was somewhat divided.

The defendant moved to set aside a default judgment for $117,383.19, which also declared a property transfer void under the Fraudulent Conveyances Act.

The court applied the five-factor test for setting aside default judgments.

While the defendant's promptness in bringing the motion and explanation for default were found to be weak, the court determined that the defendant presented an arguable defence with an "air of reality" regarding the conspiracy and fraudulent conveyance claims.

Specifically, the court noted the difficulty in establishing joint and several liability for the underlying debt based solely on a fraudulent conveyance and the non-monetary nature of remedies under the Fraudulent Conveyances Act.

The motion was granted on terms, including a restriction on dealing with a specific property and an order for costs thrown away.

The appellant appealed a Small Claims Court decision granting the respondent contractor $25,000 for unpaid renovation work and dismissing the appellant's counterclaim for defective work, delay, and lost rental income.

The Divisional Court found no palpable or overriding error in the trial judge's factual findings, which preferred the respondent's evidence.

The Court also upheld the trial judge's discretionary decision to refuse an adjournment requested by the appellant mid-trial to introduce a previously undisclosed document.

The appeal was dismissed.

A judgment creditor brought proceedings concerning a mortgaged property subject to power of sale, fearing the mortgagee and borrower were not independent and that the property might be sold below fair market value, leaving the judgment unsatisfied.

The parties ultimately resolved the underlying dispute on terms ensuring the property would be sold through a public process.

Both the judgment creditor and the mortgagee sought costs against each other.

The court held that the borrower’s failure to meet obligations caused the dispute between creditors and that ordering costs between them would not alter their legal priorities or economic exposure.

No order as to costs was made, leaving creditors free to seek recovery of enforcement costs from the borrower and the property.

The defendants brought a motion under rr. 19.08(2) and (3) of the Rules of Civil Procedure to set aside a default judgment and the underlying noting in default.

The court found that the default proceedings were irregularly obtained because the requisition for noting in default was filed before the expiry of the time to deliver a defence and while the defendant had already served a notice of intention to defend and a motion to strike the statement of claim.

The court also noted that the defendant moved promptly to set aside the default once he learned of it and had not been warned of the default proceedings.

Applying the principles governing irregularly obtained judgments, the court held that the defendants were entitled to have the default judgment and noting in default set aside without demonstrating a defence on the merits.

The plaintiff brought a motion for summary judgment against the defendants for compensatory and punitive damages arising from an investment scheme.

The plaintiff alleged breach of contract for failure to refund his investment, as well as fraud and conspiracy to defraud.

The court granted partial summary judgment against the corporate defendant for $90,000, finding a binding agreement to refund the 2007 investment.

However, the court dismissed the motion for summary judgment on the fraud and conspiracy claims, concluding that a full appreciation of the conflicting evidence and credibility issues required a trial.

The appellant appealed an order setting aside a default judgment against the respondents.

The Court of Appeal declined to interfere with the decision to set aside the default judgment.

However, the Court found the motion judge erred by failing to consider the prejudice to the appellant and failing to impose terms.

The Court varied the order to require the respondents to pay costs thrown away and pay funds into court pending trial.