Glenn Elliott Cohen

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 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.

Judgment creditors applied for a bankruptcy order against a debtor who owed over $350,000 under a judgment arising from a failed real estate transaction.

The debtor asserted he had no income or assets and that his wife paid all household and credit obligations.

The court held that a debtor ceases to meet liabilities when he personally stops paying them, even if a third party voluntarily covers the payments.

Evidence also raised suspicious circumstances regarding asset transfers, including the transfer of the debtor’s interest in the matrimonial home after judgment and dealings with luxury vehicles.

The court found the debtor had ceased meeting liabilities generally and that special circumstances justified bankruptcy under the Bankruptcy and Insolvency Act.

Following dismissal of an appeal from a master's order requiring a corporate plaintiff to post security for costs, the court addressed a dispute concerning responsibility for the resulting costs award.

The individual plaintiff argued that only the corporate plaintiff should be liable because the appeal formally related to the corporate entity.

The court found that both plaintiffs had advanced the appeal jointly, shared interests in the litigation, and were represented together without distinction in the materials.

Given the joint strategy and unified presentation of claims, the costs order properly applied to both plaintiffs.

The court confirmed that both plaintiffs were jointly responsible for paying the $30,000 costs award to the defendants.

Appeal from a Small Claims Court judgment dismissing a claim for damages arising from a power of sale transaction.

The appellant, a second mortgagee, alleged that the first mortgagee conducted an improvident sale by transferring the property for $175,000 without listing it on the open market.

The trial judge accepted the appraisal evidence supporting the sale price and rejected market valuation opinions from real estate agents and an appraisal where the author did not testify.

The court held that the trial judge made no palpable and overriding error in finding the appraised value represented the market value and that the mortgagee acted in good faith.

The appellant failed to provide cogent evidence that a higher price would have been obtained but for any alleged breach.

The appellants appealed part of a Master's order denying their motion to dismiss the respondents' counterclaim in a mortgage enforcement action.

The appellants had obtained summary judgment on the main action but sought dismissal of counterclaim allegations including repayment of funds deducted from the mortgage advance and damages for vandalism, breach of contract, conspiracy, and breach of fiduciary duty.

The court held that the appellants failed to link their evidentiary record to the specific counterclaim allegations and therefore did not meet their burden on the summary judgment motion.

The Master correctly applied the governing legal principles and did not commit a palpable and overriding error or exercise discretion on wrong principles.

The appeal was dismissed and costs were awarded to the respondents.

The defendants moved for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure, arguing that one plaintiff was a nominal party and that the corporate plaintiff lacked sufficient assets to satisfy a potential costs award.

The court held that the individual plaintiff was not a nominal plaintiff because he was personally a party to the alleged contract and asserted personal claims in the pleadings.

However, the corporate plaintiff failed to provide reliable financial disclosure demonstrating sufficient assets and had not produced basic financial records or tax filings.

Applying the established two‑step test for security for costs, the court found good reason to believe the corporation could not satisfy a costs order and exercised its discretion to order staged security.

Security of $120,000 for each set of defendants was ordered, payable in three installments tied to the litigation timetable.

The appellants appealed a Master’s order refusing to dismiss most aspects of a counterclaim on a summary judgment motion in a mortgage enforcement action.

The counterclaim alleged vandalism, burglary, trespass, breach of contract, conspiracy, and repayment of fees deducted from the mortgage advance.

The appellants argued that the Master misapprehended the evidence and improperly shifted the burden by requiring them to disprove the respondents’ allegations.

The court held that the appellants failed to adduce evidence specifically addressing several pleaded claims or linking their evidence to the alleged causes of action.

The Master applied the correct legal principles and committed no palpable and overriding error.