Harold T. Rosenberg

The creditors brought a motion to lift the automatic stay of proceedings under the Bankruptcy and Insolvency Act to continue a civil lawsuit against the debtor.

The underlying lawsuit involves claims of misrepresentation and breach of trust arising from home renovations.

The creditors also requested to add the proposal trustee as a defendant in the lawsuit.

The Court granted the motion to lift the stay, finding that the creditors would suffer material prejudice otherwise, but denied the request to add the trustee as a defendant.

The plaintiffs brought a motion to strike several paragraphs from the defendants' statement of defence and counterclaim under Rules 25.06(1) and 25.11.

The court struck portions that pleaded evidence rather than material facts, or were scandalous and vexatious.

However, the court retained paragraphs that properly pleaded material facts regarding consent and contributory negligence.

The plaintiffs were awarded costs of $4,500.

The appellant, a mortgagee, appealed a motion judge's decision that granted priority to construction lien claimants over his registered third mortgage.

The Court of Appeal dismissed the appeal, affirming that the advances made by the mortgagee did not fall within the exceptions of s. 78(2) or s. 78(6) of the Construction Act.

The court held that advances must be "made in respect of" the mortgage and the intention to secure financing must operate prospectively to gain priority over liens.

The decision reinforces the general principle of priority for lien claimants and the onus on mortgagees to clearly fall within statutory exceptions.

The appellant, Forest Meadows Developments Inc., appealed an order dismissing its application for a declaration that the respondent, Narges Shahrasebi, breached an Agreement for Purchase and Sale (APS).

The core issue was whether the respondent had represented that she would not be able to close on the extended closing date of October 29, 2019, which the appellant argued constituted anticipatory breach.

The Court of Appeal upheld the application judge's finding of fact that no such representation was made, and therefore, there was no anticipatory breach or reasonable reliance by the appellant.

The appeal was dismissed.

The receiver brought a motion for directions to determine whether an appeal from a priority dispute order in a receivership lies to the Court of Appeal under the Bankruptcy and Insolvency Act or to the Divisional Court under the Construction Act.

The Court of Appeal held that because the motion judge's order was granted in reliance on jurisdiction under the Bankruptcy and Insolvency Act, specifically a receiver's application for directions under s. 249, the appeal route is to the Court of Appeal.

This motion, initiated by the Receiver, determined competing priorities under s.78 of the Construction Act between construction lien claimants (represented by Maxion Management Services Inc.) and a third-ranking mortgage held by Donald Dal Bianco.

The court found that Dal Bianco's mortgage, registered after the first lien arose and securing funds advanced between 2012 and 2015, did not qualify for priority as a "subsequent mortgage" under s.78(6) because the advances were not made "in respect of that mortgage." Furthermore, it was not a "building mortgage" under s.78(2) as it did not involve an intention to secure future financing.

The court emphasized the general priority of lien claimants and the mortgagee's burden to prove exceptions.

Consequently, the lien claimants were granted priority over the third mortgage.

The plaintiffs obtained an ex parte Mareva injunction freezing the assets of the defendant, a former senior manager who allegedly misappropriated funds and started a competing business.

On the return of the motion, the court reviewed the evidence de novo.

The court found that the plaintiffs failed to establish a strong prima facie case of fraud, as the defendant provided reasonable explanations for the impugned credit card charges and tax defaults.

Furthermore, the defendant's decision to sell his home was made prior to being served with the claim and was for the purpose of downsizing, not dissipating assets.

The Mareva injunction was set aside.

The plaintiff brought a motion to amend its statement of claim to add SH Pan Transport Inc. as a defendant in an action for damaged freight.

SH Pan argued the motion was statute-barred as the two-year limitation period had expired.

The court found that the plaintiff exercised reasonable due diligence in relying on the initial defendant's admission that the driver was its employee, and the claim against SH Pan was not discoverable until the initial defendant withdrew that admission at discovery.

The court granted the motion to add SH Pan as a defendant, finding no non-compensable prejudice.

The appellants, who provided portfolio management services, appealed a decision dismissing their motion for summary judgment.

They argued the respondents' claims for investment losses were statute-barred under the Limitations Act, 2002 and precluded by a release.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusions that the limitation period did not begin until the respondents learned of regulatory settlements, and that the release did not contemplate these specific claims.

The plaintiffs sued the defendant, a cousin and former employee, for trespass, conversion, and breach of confidence following a theft at their home.

The court found that the defendant, acting in concert with the plaintiffs' housekeeper, used confidential information about the home's security and the location of valuables to enter the home and steal jewelry, cash, and a security system.

The court relied on circumstantial evidence, including extensive phone records between the defendant and the housekeeper, and found the defendant's testimony lacked credibility.

The defendant was held liable and ordered to pay compensatory damages for the stolen items and $5,000 in punitive damages.

The plaintiffs sued the defendant portfolio managers for investment losses, alleging misrepresentation, negligence, and breach of fiduciary duty.

The defendants moved for summary judgment, arguing the claims were statute-barred and barred by a prior release.

The court dismissed the motions, finding that the limitation period did not begin to run while the plaintiffs reasonably relied on the defendants' assurances that the losses were due to market conditions, and that the release did not apply to claims that were unknown and not in the contemplation of the parties at the time it was signed.

The defendants and the plaintiff brought cross-motions regarding whether the plaintiff's daughter could attend the plaintiff's cross-examination as a moral support person.

The underlying action involved allegations of elder abuse and a disputed property transfer.

The court found that while a support person could be appropriate given the plaintiff's age and anxiety, the daughter was not an appropriate person.

Because the plaintiff lived with the daughter and might feel pressured to tailor her evidence to please her caregiver, the daughter's presence would create a danger of substantive unfairness.

The defendants' motion was granted and the plaintiff's cross-motion was dismissed.

This appeal concerned the interpretation of s. 178(1)(a.1)(i) of the Bankruptcy and Insolvency Act, specifically whether a debt arising from intentionally inflicted harm, including psychological harm, should be released upon bankruptcy.

The Registrar had found that the societal interest in releasing this debt was outweighed by the benefit of not releasing it, aligning with the purpose of the BIA to provide a fresh start to an honest but hapless debtor, not to release judgments for intentional harm.

The court agreed with the Registrar's reasoning and dismissed the appeal.

The defendants brought a motion under Rule 21.01(1)(a) and Rule 20 to dismiss the plaintiff's action.

The action claimed against the defendants under the trust provisions of the Construction Lien Act for interest and costs, and was also challenged on the basis of a limitation period.

The court dismissed the motion, finding that the legal question of whether interest and costs are covered by the CLA trust was unsettled and required a full factual record at trial.

Similarly, on the limitations issue, the court determined there was a genuine issue requiring trial, particularly concerning the "appropriate means" element of discoverability under the Limitations Act, 2002.

This endorsement addresses costs for several prior motions.

The plaintiffs (Nicholson Group) were awarded costs for a successful motion for leave to amend their statement of claim.

The Janza group and Horbatiuk defendants were awarded costs for their successful motions regarding abandoned motions and contempt proceedings.

Andrey Pinsky was awarded costs against the plaintiffs for successfully opposing an indemnity motion brought by Mr. Nicholson.

The court applied principles under the Courts of Justice Act and Rule 57.01(1), declining substantial indemnity where no egregious conduct was found.

The appellant appealed a motion judge's discretionary decision refusing to set aside a noting of default.

The motion judge had considered the appellant's failure to comply with an outstanding production order, which could prejudice the respondents.

The Court of Appeal found no basis to interfere with the motion judge's exercise of discretion.

Furthermore, the Court held that Rule 11 of the Rules of Civil Procedure did not apply because the respondents had obtained an order to proceed under section 69 of the Bankruptcy and Insolvency Act.

The appeal was dismissed with costs.

Unsecured judgment creditors sought an order under s. 163(2) of the Bankruptcy and Insolvency Act to examine an individual in his personal capacity and as director of a related corporation regarding the administration of a bankrupt estate.

The court applied the low threshold test for examinations under the BIA, requiring evidence that the proposed examination may yield information relevant to the administration of the estate and that the proposed examinee likely possesses such information.

Evidence raised questions about whether accounts receivable belonging to the bankrupt were paid to the individual or transferred to a related corporation while the bankrupt was insolvent.

The court found sufficient cause to permit the examination and ordered document production.

Costs were awarded to the moving creditors.

In complex multi-party litigation involving competing applications and actions, the moving parties sought advance production of documents prior to cross‑examinations on affidavits and before the close of pleadings.

The court rejected the argument that counsel had reached a binding agreement requiring early documentary production and held that no such agreement existed.

The court further held that under the Rules of Civil Procedure, affidavits of documents are generally not required until after pleadings close, absent exceptional circumstances where production is essential to plead.

Motions to disqualify counsel were not equivalent to summary judgment proceedings and therefore did not justify early disclosure.

The court denied the request for advance production and issued directions governing examinations and interim injunctive relief pending further motions.

A defendant brought a motion to dismiss an action alleging fraudulent conveyance and to discharge a certificate of pending litigation registered against a matrimonial home.

The moving party argued that the claim was barred by a prior full and final release executed after settlement of related debts.

The court held that interpretation of the release required consideration of the surrounding circumstances and could not be determined without a trial, so dismissal of the action was refused.

However, the court found that the release was a material fact that should have been disclosed when leave to register the certificate of pending litigation was obtained.

Because of this non-disclosure, the certificate of pending litigation was discharged.

The landlords appealed a decision of the Landlord and Tenant Board dismissing their claims for property damage, including a mould problem.

The Board found that the landlords failed to prove on a balance of probabilities that the tenants caused the problems.

The Divisional Court dismissed the appeal, holding that the Board's conclusion was a finding of fact and that appeals from the Board are restricted to questions of law under section 210 of the Residential Tenancies Act.