Glenn Elliott Cohen

The applicants, investors and shareholders of the respondent mortgage investment corporation, sought the appointment of a receiver and manager over the respondent's properties and assets under the Bankruptcy and Insolvency Act and the Courts of Justice Act.

The respondent opposed the application and brought a motion to stay or strike the application, arguing technical deficiencies regarding a co-lender not being named as a party and an allegedly defective s. 244 BIA notice.

The court dismissed the respondent's motion, finding no prejudice or injustice from the technical defects.

The court granted the receivership order, concluding it was just and convenient given the respondent's insolvency, default on obligations, and the need for an investigatory receiver to determine the status of the investors' funds and remaining assets.

The defendants brought a motion to transfer a mortgage enforcement action from Milton to Guelph, arguing the property and defendants were located in Guelph.

The plaintiff opposed, relying on Rule 13.1.01(3) which requires mortgage actions to be commenced in designated counties.

The court held that Rule 13.1.01(3) does not bar a transfer motion under Rule 13.1.02(2).

However, the court dismissed the motion after finding the defendants brought it for an improper tactical purpose to force a settlement, constituting an abuse of process.

The appellants, a corporation and its sole officer/director, appealed a summary judgment foreclosure decision.

The respondent held a first mortgage on a residential property in Niagara Falls.

The appellants failed to pay the mortgage when it matured on February 2, 2023.

The appellants argued the mortgage was invalid because the respondent had not signed the commitment letter, and raised various other defenses including allegations of fraud, conspiracy, and that a lease with a tenant barred foreclosure.

The motion judge granted summary judgment for foreclosure, payment, and possession.

The Court of Appeal dismissed the appeal, finding the mortgage was validly executed as evidenced by payment of funds and registration of the charge, and rejecting all other arguments as unsupported by evidence.

The court considered costs following the dismissal of the plaintiffs’ action by summary judgment.

The Church Defendants and Elle Mortgage Corporation sought costs on a partial indemnity basis.

The court found the amounts sought reasonable given the nature of the motion and the materials filed, and awarded costs to both sets of defendants, including additional costs previously ordered by Justice Lack.

The plaintiff, a chargee, sought summary judgment for foreclosure, payment of debt, possession, and leave to issue a writ of possession against the mortgaged property owned by 2811230 Ontario Ltd. and guaranteed by Alisha Chaly.

The defendants raised several issues, including the validity of the mortgage commitment due to an unsigned letter, allegations of civil fraud/conspiracy, the presence of a tenant, the legality/peaceability of a prior lockout, and the plaintiff's alleged failure to act with due diligence regarding mortgage renewal.

The court dismissed all defendant arguments, finding no genuine issues requiring a trial, and granted the plaintiff's motion for summary judgment, including foreclosure, payment, and leave to issue a writ of possession.

The defendants' cross-claim against the City of Niagara Falls was unaffected.

This decision addresses the issue of costs following a prior judgment where the applicant, We Care Funding Limited Partnership (WCF), was granted the right to pay out the respondent, 1569635 Ontario Limited (156), for its 50% interest in a second mortgage.

Both parties sought costs.

The court found 156 to be the more successful party, having resisted WCF's initial incorrect capacity claim and ultimately recovering a greater amount than WCF had offered.

While 156 sought substantial indemnity costs based on contractual terms, the court denied this, finding the legal fees were incurred to resist the payout, not to enforce security as contemplated by the mortgage terms.

The court awarded 156 costs on a partial indemnity scale, fixed at $45,000 all inclusive.

The applicant, We Care Funding Limited Partnership (WCF), sought an order to compel the respondent, 1569635 Ontario Limited (156), to discharge or assign its 50% share in a second mortgage on two properties.

WCF, holding the first and third mortgages, argued its entitlement as a subsequent encumbrancer. 156 disputed WCF's standing and the amount owing, including claims for a lender's fee and a prepayment penalty.

The court found WCF had standing as a subsequent encumbrancer and determined the proper amount owing to 156, disallowing the lender's fee and the prepayment penalty.

The appellants, David, Jacqueline, and Jeremy Kaweesa, brought a motion before the Court of Appeal for Ontario to set aside an order by Paciocco J.A. The prior order had granted security for costs to the mortgagees (Sub-Prime Mortgage Corporation and Elle Mortgage Corporation) in a mortgage enforcement appeal and lifted a temporary stay on a writ of possession.

The Court of Appeal dismissed the Kaweesas' motion, finding no error in Paciocco J.A.'s application of the test for security for costs under Rule 61.06(1) of the Rules of Civil Procedure.

The court upheld the findings that the appeal was frivolous and vexatious and that the appellants had insufficient assets.

The claim regarding the stay was deemed moot as it had expired.

The moving parties (mortgagees and their principal) brought motions in the Court of Appeal for Ontario seeking security for costs of an appeal, lifting a temporary stay of a writ of possession, further security for costs awarded below, and expediting the appeal.

The responding parties (mortgagors/appellants) had appealed a judgment enforcing minutes of settlement and granting a writ of possession, which had been temporarily stayed conditional on tax payments.

The court found the appeal grounds frivolous and vexatious, and the responding parties had insufficient assets.

The court granted security for costs and lifted the temporary stay, finding the responding parties breached the stay condition and that the writ of possession was not automatically stayed.

The motions for further security for costs below and expediting the appeal were dismissed.

This decision addresses the costs of a successful motion for judgment brought by the plaintiffs (Sub-Prime Mortgage Corporation and Elle Mortgage Corporation) to enforce minutes of settlement.

The court determined the liability, scale, and quantum of costs for both the plaintiffs and Terry Walman, a defendant to the counterclaim who also participated in the motion.

The plaintiffs were awarded substantial indemnity costs as per their mortgage terms, while Mr. Walman was awarded partial indemnity costs.

The defendants were ordered to pay costs to both the plaintiffs and Mr. Walman.

This case addresses the enforceability of an "automatic renewal" clause in a mortgage that stipulated a substantially higher interest rate and a renewal fee if the loan was not repaid at maturity.

The court found the clause unenforceable, deeming it a penalty on arrears of principal in violation of section 8 of the Interest Act.

While the mortgagors' alleged lack of actual knowledge of the clause was not a basis for invalidation due to their independent legal advice, the court ruled that the mortgage was not renewed at the higher rate.

The mortgagee was, however, entitled to three months' simple interest under section 17 of the Mortgages Act, as the repayment was initiated by the mortgagors and not in response to enforcement proceedings, despite the mortgagee's prior unjustified demands frustrating refinancing efforts.

The court also allowed a reduced fee for mortgage discharge and disallowed legal fees for the mortgagee's pursuit of unjustified claims.

The Superior Court of Justice issued supplementary reasons regarding the terms for a 90-day stay on the enforcement of a writ of possession, previously granted due to the COVID-19 pandemic.

The plaintiffs (mortgagees) sought to impose conditions on the defendants (mortgagors) during this stay, including monthly payments for accruing debt and realty tax arrears, proof of property insurance, and appraisal inspections.

The defendants opposed, arguing these constituted new substantive relief beyond the original consent judgment.

The court, exercising its discretion under Rule 1.05 of the Rules of Civil Procedure, imposed terms requiring the defendants to pay $3,000 monthly towards realty tax arrears and to provide immediate evidence of property insurance.

The request for appraisal inspections was denied.

The court also clarified the duration of the stay in light of the termination of the provincial state of emergency.

The plaintiffs brought a motion for judgment to enforce minutes of settlement in a mortgage enforcement action.

The defendants failed to make the required $2,100,000 settlement payment by the agreed deadline, triggering a default provision for a $2,700,000 judgment and possession of the property.

The defendants argued they could not secure refinancing due to existing encumbrances and claimed the COVID-19 pandemic and lockdowns frustrated the agreement.

The court rejected the frustration argument, noting the pandemic was a known factor when the settlement was signed, and granted the plaintiffs' motion for judgment.

The court held a case management conference in a land dispute action involving a failed real estate transaction and a discharged certificate of pending litigation.

The court issued procedural directions regarding the amendment of pleadings, demands for particulars, and discussions on security for costs, while setting dates for examinations for discovery and the next case management conference.

The applicant, a second mortgagee, sought to redeem and discharge two first mortgages held by the respondent.

The parties disputed the amounts required to discharge the mortgages.

For the first property, the court allowed the respondent to add $3,000 in legal costs from a separate summary judgment motion to the discharge amount, as permitted by the mortgage terms.

For the second property, the court found that the respondent had made bona fide errors in its initial discharge statement and was therefore not bound to accept the applicant's tendered payment.

Consequently, interest continued to accrue on the mortgage.

The plaintiffs brought a motion for summary judgment in an action arising from a failed real estate transaction.

The defendants, who had agreed to purchase the plaintiffs' home unconditionally, failed to close the transaction, alleging they were induced by a misrepresentation regarding the lot size.

The court found no genuine issue requiring a trial, concluding there was no misrepresentation and that the defendants simply regretted their purchase after a downturn in the real estate market.

Summary judgment was granted in favour of the plaintiffs for damages representing the difference in sale price and carrying costs.

The appellant, as second mortgagee, sought orders to discharge the respondent's first mortgages on two properties by paying money into court, pending resolution of disputes regarding the calculation of balances owing.

The application judge dismissed both applications and awarded costs on a substantial indemnity basis.

The Court of Appeal dismissed the appeals on the substantive issues but remitted the matter to the Superior Court for amended applications to determine the disputed costs and charges.

The court clarified that section 12(3) of the Mortgages Act applies in limited circumstances and that mortgagors seeking to contest discharge statement items must bring applications under Rule 14.05(3)(e) with full particulars and evidence.

The costs award was quashed and referred to the judge hearing the amended applications.

A non-party, Dennis Cibulka, brought a motion to set aside a default judgment of foreclosure and to be added as a defendant in an action concerning a residential property he has occupied since 1959.

The court found that Cibulka was a necessary party to the action and that the interests of justice favored granting the relief sought.

The motion to set aside default judgment was made promptly upon Cibulka learning of it, there was a reasonable prospect of payment if the mortgage was enforceable, and significant net equity in the property would otherwise result in a windfall to the plaintiff.

The court granted the motion, adding Cibulka as a defendant, setting aside the default judgment, and awarded costs to Cibulka.

The plaintiff brought a motion for summary judgment seeking damages related to a mortgage agreement where the defendant failed to advance funds.

The defendant brought a cross-motion for summary judgment on its counterclaim, seeking payment of fees to remove its charge on the property.

The court found that the defendant was entitled to rely on the mortgage agreement's terms, which included conditions precedent for advancing funds that were not met due to the plaintiff's increased indebtedness.

The plaintiff failed to provide sufficient evidence to support claims of breach of contract or tortious conduct.

The plaintiff's motion was dismissed, and the defendant's cross-motion was granted, entitling the defendant to $11,000 plus interest from the surplus funds of the property's sale.

A third mortgagee appealed a motion judge's decision dismissing his motion to set aside a default judgment in a foreclosure action brought by the first mortgagee.

The appellant claimed he had an interest in the property with sufficient value to satisfy his third mortgage after the first and second mortgages were paid.

The Court of Appeal upheld the dismissal, finding that the appellant's assertion of equity in the property did not constitute a valid defence to the foreclosure.

The appellant had not disputed the validity of the mortgages and had failed to file a request to redeem or request for sale.

The appeal was dismissed with costs awarded to the respondent.