Glenn Elliott Cohen

The plaintiffs, judgment creditors of the defendant husband, sought to set aside the purchase and subsequent transfer of a residential property registered primarily in the defendant wife's name.

The court found numerous 'badges of fraud' and rejected the defendants' evidence that the wife solely funded the purchase.

Concluding that the husband contributed substantially to the purchase price through pooled family resources and corporate entities he controlled, the court held that the husband held an undivided one-half interest in the property and that the transfer of his interest to his wife was void as against his creditors under the Fraudulent Conveyances Act and the Bankruptcy and Insolvency Act.

The appellants abandoned their appeal and advised the court the day before the hearing.

Counsel appeared to argue costs.

The Court of Appeal awarded $3,000 in costs to the respondent for the abandoned appeal, and $500 to the appellants for the appearance, noting the issue should have been resolved.

Following settlement of a mortgage enforcement action, the court determined the appropriate costs payable by the mortgagor to the mortgagee.

The mortgage contained a contractual provision requiring the mortgagor to pay the lender’s legal costs on a solicitor-and-client basis.

The court held that such provisions do not displace the court’s discretion under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

Concerns about an inaccurate discharge statement under the Mortgages Act, block-billed legal accounts, and proportionality justified refusing full indemnity costs.

Applying the principles of fairness and reasonable expectations of the unsuccessful party, the court reduced the claimed $65,831.32 in costs to $25,000 inclusive of taxes and disbursements.

The plaintiff mortgagee brought a motion for summary judgment seeking payment of a mortgage debt, possession of the mortgaged commercial property, dismissal of the defendants’ counterclaim, and leave to issue a writ of possession.

The defendants sought an adjournment to obtain counsel and additional documentation and argued that the mortgage assignment and notice requirements were defective.

The court held that the defendants failed to produce documentary evidence supporting their claims of mortgage renewal or payments and did not meet their obligation to put their best foot forward on the motion.

The court further found that notice of assignment through a notice of sale satisfied statutory requirements and that the mortgage was clearly in default.

Summary judgment and possession were granted, with issuance of a writ of possession delayed for thirty days to allow occupants to vacate.

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.

In a reference to determine the distribution of proceeds from a mortgage sale, the first mortgagee sought to claim increased fees and expenses arising from amending agreements entered into with the mortgagor after the second mortgagee registered its charge.

The court held that the second mortgagee was not bound by the amending agreements, as it had no notice of them at the time of registration.

The first mortgagee was only entitled to claim fees specifically set out in the registered mortgage and standard charge terms.

The increased fees were disallowed and legal fees were reduced.

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.

The plaintiff brought a motion for summary judgment against the defendant to enforce a debt obligation under a promissory note.

The defendant admitted to signing the note and acknowledging the debt but raised a defence of duress during cross-examination, which was not pleaded.

The court applied the full appreciation test under Rule 20 and found no genuine issue requiring a trial, as the defendant's evidence did not support a finding of operative duress.

Summary judgment was granted in favour of the plaintiff for the acknowledged debt amount.

Following a successful damages claim arising from a mortgage dispute, the plaintiff sought recovery of legal costs on a substantial indemnity basis pursuant to the mortgage contract.

Although the defendants obtained a temporary stay of execution related to the conduct of the plaintiff’s former lawyer, the court found the plaintiff remained substantially successful overall.

The contractual provision supporting substantial indemnity costs was applied.

The court awarded costs slightly below the amount sought.

The plaintiff brought a motion for summary judgment relating to a mortgage debt that had been in default since 2001.

The defendants conceded judgment but sought a temporary stay of enforcement pending the determination of a separate action against their former lawyer for alleged breach of fiduciary duty and contribution or indemnity.

The court considered Rule 20.08 of the Rules of Civil Procedure and the broad discretionary authority under s. 106 of the Courts of Justice Act to stay proceedings where the interests of justice require.

Given the circumstances surrounding the initiation of the action and the alleged involvement of the former lawyer, the court concluded that the equities favoured granting a temporary stay of execution.

Judgment was granted to the plaintiff but enforcement was stayed on terms pending progress of the related litigation.

The defendant brought a motion under s. 21(5) of the Courts of Justice Act to set aside a decision refusing leave to appeal.

The Divisional Court dismissed the motion because it was brought more than two years after the decision, well beyond the four-day limit in Rule 61.16(6), with no reasonable explanation for the delay.

Furthermore, the court noted that such a motion will only be granted if the motions judge declined jurisdiction, which did not occur in this case.

The appellant appealed an order finding that the respondents were privies to a prior foreclosure proceeding against the elder Marinos.

The appellant argued the respondents were independent debtors without a community of interest.

The Court of Appeal agreed with the motion judge that the respondents were privies and that issue estoppel applied against the appellant, dismissing the appeal.

The appellants appealed an order dismissing their Rule 21 motion to strike newly added claims for fraudulent transfer of assets.

The appellants argued the claims were statute-barred under the Limitations Act and should have been discovered earlier through corporate searches.

The motion judge found that the searches would not have necessarily revealed the new corporation and that the motion was a collateral attack on a previous order allowing the amendment.

The Court of Appeal agreed with the motion judge and dismissed the appeal.

The appellant appealed a summary judgment granting possession of his property to the first mortgagee and dismissing his counterclaim against the first and second mortgagees, as well as an order striking his claim against the mortgagees' lawyer.

The appellant argued that the two mortgages were intrinsically linked and the second mortgagee's failure to advance funds caused his default on the first mortgage.

The Court of Appeal dismissed the appeals, finding that the mortgages were separate, the failure to advance funds was due to the appellant's own failure to remove an execution and provide an appraisal, and the lawyer owed no duty of care to the appellant.

The appellant mortgagee appealed an order dismissing its motion to re-open a default judgment for foreclosure to request a reference on the mortgage covenant.

The default judgment had been obtained on consent 2.5 years prior.

The Court of Appeal dismissed the appeal, finding that the Master properly exercised his discretion to deny the relief given the unexplained delay, the finality of the judgment, and the prejudice to the mortgagors.

The appellant appealed a confirmation order that credited the respondent mortgagee with $50,825.72 for utilities expenses.

The respondent cross-appealed the disallowance of credits for a $10,000 payment and $5,000 in legal fees.

The Court of Appeal allowed the appeal in part, reducing the utilities credit to $6,204.78 because the respondent failed to establish the reasonableness of the excess payments.

The cross-appeal was dismissed as there was no evidence to support the claimed credits for the bonus or legal fees.