G.F. Camelino

A mortgagee applied to pay surplus sale proceeds from a power of sale into court where competing claims existed between joint mortgagors and an execution creditor.

One respondent had filed a consumer proposal under the Bankruptcy and Insolvency Act and argued the execution creditor’s writ could not attach to her share of the surplus due to the statutory stay.

The court held that a writ of execution filed with the sheriff constitutes an encumbrance and a subsequent encumbrancer under s. 27 of the Mortgages Act.

Accordingly, the execution creditor had to be paid from the surplus before any residue became payable to the mortgagors.

The remaining residue was divided equally between the joint owners.

Following dismissal of a motion brought by a creditor in a Companies’ Creditors Arrangement Act proceeding, the applicants sought costs on a substantial indemnity basis.

The court rejected the request for substantial indemnity costs, finding that references to possible fraud during submissions and cross‑examination did not amount to pleaded or proven allegations warranting elevated costs.

The applicants sought partial indemnity costs based on rates derived from the Costs Subcommittee practice direction with inflation adjustments.

The court noted that the recommended rates in the practice direction were outdated and unrealistic for major Toronto litigation but nevertheless accepted the claimed partial indemnity rates as reasonable in the circumstances.

Costs were awarded to the applicants in the amount claimed.

Minatura brought a motion to remove Aburi Goldfields Ghana Ltd. from the CCAA proceedings of the applicants, arguing lack of disclosure, that Aburi was not a debtor, and that the dispute over control of Aburi should be litigated in Ghana.

The court dismissed the motion, finding that Aburi was a debtor, that there was no material non-disclosure, and that staying the CCAA proceedings would likely cause the restructuring to fail.

Applying the Van Breda framework and giving weight to a forum selection clause in the parties' shareholders' agreement, the court held that Ontario had jurisdiction and that Minatura failed to establish that Ghana was a more appropriate forum.