Howard W. Reininger

The moving parties sought to re-open a dismissed appeal more than three years after this court dismissed their appeal from a summary judgment order enforcing four mortgages.

The court considered the motion under r. 2.1 of the Rules of Civil Procedure and found it frivolous, vexatious, and an abuse of process.

The moving parties failed to meet the high threshold for re-opening, having raised unsustainable allegations of fraud and misconduct that were or could have been previously advanced.

The motion to re-open was dismissed.

The appellant appealed a summary judgment requiring payment of $2,428,476.51 plus interest and delivery of possession of mortgaged property.

The appellant's sole defence was that the respondent mortgagee failed to provide a discharge statement as required by s. 22(2) of the Mortgages Act.

The Court of Appeal found no basis to interfere with the motion judge's factual findings that the respondent had complied with the statutory requirement, noting no particular form of statement was required and the substance of the information had been provided.

Fresh evidence was refused as irrelevant.

The court considered a motion for summary judgment in a civil action arising from a criminal prosecution for fraud against Anthony Falasca.

The plaintiffs alleged malicious prosecution, negligent investigation, misfeasance, failure to withdraw the charge, and abuse of process.

The court found that the claims relating to the criminal prosecution, including abuse of process, were statute-barred under the Limitations Act, 2002, as the action was commenced after the expiry of the limitation period.

The court declined to consider the separate abuse of process claim relating to a bankruptcy proceeding, as it was not properly before the court on this motion.

The decision provides a detailed analysis of discoverability and the application of limitation periods in prosecutorial torts.

This appeal concerned the reinstatement of a mortgage charge (FO Charge) on a property title after it was mistakenly deleted by the Land Registry Office.

The applicant, FirstOntario Credit Union, appealed the Director of Titles' decision to delete the reinstated charge, arguing for rectification of the register or that the respondents had constructive notice of its interest.

The court dismissed the appeal, affirming the doctrine of indefeasibility of title for bona fide purchasers and mortgagees for value without actual notice.

It held that constructive notice is insufficient to defeat registered interests and that the Land Titles Assurance Fund is the appropriate remedy for losses due to registry errors.

This appeal arose from the appellants' default under several mortgages and guarantees.

The appellants challenged the motion judge's decision to grant interest despite the respondent's concession of charging a criminal interest rate and failing to provide timely discharge statements, and disputed the calculation of amounts owing.

The Court of Appeal dismissed the appeals, affirming the motion judge's discretionary application of notional severance for the criminal interest rate and upholding the factual findings regarding the amounts advanced.

The court found no reversible error or basis for claims of Charter violations or judicial bias.

The plaintiff, whose construction lien was previously vacated by a different judge, brought a motion seeking a Certificate of Pending Litigation (CPL) or, alternatively, an order for sale proceeds to be paid into court, pending an appeal of the lien vacation order.

The court denied the CPL, agreeing with the defendants that it was not available and constituted a collateral attack on the prior order.

However, recognizing the potential merit of the appeal and the risk to the plaintiff if the property was sold, the court exercised its jurisdiction under Rule 63.01(a) to order that if the property is sold, $500,000 of the proceeds must be paid into court by the defendants as interim protection pending the Divisional Court's final determination.

The defendants brought a motion to discharge a claim for lien and vacate a certificate of action, arguing the plaintiff was an owner, not a contractor, under the Construction Act.

The plaintiff claimed he was a contractor who provided labour and materials for a house construction.

The court found that the plaintiff and defendants had a partnership agreement to build and sell the house for profit, making the plaintiff an owner.

As an owner cannot lien their own property, the motion was granted, and the claim for lien was discharged.

The appellant brought a motion to transfer her appeal, which had previously been quashed by the Court of Appeal, to the Divisional Court.

The motions judge considered whether there was jurisdiction to transfer an appeal weeks after it had been quashed.

More critically, the judge found that the appellant had already requested and been denied this transfer by the original panel that quashed the appeal.

A single motions judge lacks the jurisdiction to reverse a panel's decision or to grant relief that could have been, but was not, sought from the panel.

The motion was dismissed, and the appellant was advised that her only remedy was to initiate a new appeal in the Divisional Court.

The appellant appealed a judgment of less than $50,000 to the Court of Appeal for Ontario.

The Court of Appeal quashed the appeal, holding that it was properly brought to the Divisional Court due to the monetary amount.

No costs were awarded.

Following a successful summary judgment motion to enforce four mortgages, the plaintiff mortgagee sought costs on a substantial indemnity basis as provided in the standard charge terms.

The defendants argued for partial indemnity costs, noting the plaintiff initially claimed interest exceeding the criminal rate and provided inaccurate discharge statements.

The court awarded partial indemnity costs for the steps up to the summary judgment motion due to the plaintiff's improper conduct, but awarded substantial indemnity costs for the motion itself because the defendants persisted in an unsuccessful misrepresentation defence.

Total costs were fixed at $63,772.65.

The plaintiff brought a motion for summary judgment on a series of mortgages granted to the defendants.

The defendants counterclaimed, alleging an oral agreement that the plaintiff would pay out all outstanding executions against them, and argued the mortgages charged a criminal rate of interest.

The court found no evidence of the alleged oral agreement.

While the initial discharge statements contained illegal interest rates, the court applied notional severance to enforce the principal amounts advanced and the stipulated interest rates (18% and 24%).

Summary judgment was granted to the plaintiff for the principal amounts and possession of the properties, while the defendants' counterclaim regarding the discharge statements was allowed to proceed.

The Appellant, Anthony Falasca, brought a motion appealing the wording of a formal Order settled before Master Jean, arguing it was inconsistent with its preamble by omitting the word "advanced" in relation to document production, leading to ambiguity.

Alternatively, Falasca sought to vary the Order pursuant to s. 187(5) of the Bankruptcy and Insolvency Act.

The creditor, Goldcourt Developments Inc., brought a cross-motion to quash the appeal on the grounds that it was out of time.

The court dismissed Goldcourt's cross-motion, finding that while an appeal on the merits would be out of time, the motion to vary the order was properly brought under s. 187(5) due to subsequently discovered facts, specifically Goldcourt's counsel misinterpreting the order's scope.

The court granted Falasca's motion, ordering the amendment of Master Jean's Order to ensure clarity regarding document production obligations.

This endorsement addresses costs following a motion to strike claims.

The defendants, Anthony Volpini, Linda Aceti, and Mary Ann Ley, sought to strike claims against them for disclosing no cause of action.

The plaintiffs, Anthony Falasca and Aryle Developments Inc., successfully defended the motion against Volpini and Aceti, though they conceded the claim against Ley in their reply factum.

The court found the plaintiffs were the most successful party and entitled to partial indemnity costs.

However, the claimed hourly rates and time spent by plaintiff's counsel were deemed excessive, and the plaintiffs' late concession regarding Ley was noted.

Consequently, the court reduced the requested costs.

The defendants Anthony Volpini, Linda Aceti, and Mary Ann Ley brought a motion under Rule 21 to strike the plaintiffs' claims against them for disclosing no cause of action.

The court applied the "plain and obvious" test, assuming pleaded facts to be true unless patently ridiculous, and reading the statement of claim generously.

The motion to strike was dismissed for Volpini and Aceti, as the pleadings provided sufficient factual matrix for a cause of action.

The claim against Ley was struck as the plaintiffs did not oppose it.

The plaintiff mortgagee sought to recover over $1.3 million from the defendant guarantor.

The court previously determined that the mortgage amount could not be increased by payments made by the plaintiff's corporation.

This decision addresses the final judgment amount, post-trial interest adjustments, and costs.

The court calculated the amount owing under the mortgage to be $1,897.89.

It declined to suspend interest, finding no legal basis for it.

Regarding costs, the plaintiff sought substantial indemnity costs, while the defendant sought costs against the plaintiff.

The court applied Rule 57.05(1) and exercised its discretion to deny costs to the plaintiff, given the minimal recovery compared to the amount claimed and the plaintiff's knowledge regarding the legal basis of her claim.

The court also found no legal basis to award costs to the defendant.

The plaintiff, Janet Louise Hilson, sought to recover amounts from the defendant, Carole Evans, as guarantor of a second mortgage.

Hilson claimed her initial investment in the mortgage, payments made to keep a first mortgage in good standing, and amounts for repairs and renovations.

The court dismissed Hilson's claims for equitable subrogation for pre-purchase payments and for payments made by her corporation (177), finding these were not secured by the mortgage or properly proven.

Claims for repairs and renovations were also dismissed due to insufficient evidence.

The court found Hilson was entitled to recover her initial $170,000 investment plus simple interest, subject to credits from the power of sale of the mortgaged units.

Evans was not entitled to a credit for Hilson's settlement with her former lawyer, Reiber, as there was no evidentiary basis to link that recovery to the guaranteed debt.

Further submissions were invited for final calculations, interest adjustments, and costs.

Appeal from trial judgment finding defendants liable on personal guarantees for 25 mortgages.

The appellants challenged the limitation period applicable to claims on stand-alone guarantees, arguing the two-year period under the Limitations Act, 2002 applied rather than the ten-year period under the Real Property Limitations Act.

The trial judge had also reduced the amount owing by 50 per cent to account for settlement proceeds from a negligence action against the plaintiff's solicitor.

The appellants appealed the limitation period determination and the 50 per cent reduction; the plaintiff cross-appealed arguing no reduction should apply.

The court dismissed the appeal on the limitation period issue, finding stand-alone guarantees fall within "any other instrument to repay whole or part of any money secured by a mortgage" under the Real Property Limitations Act.

The court allowed the cross-appeal on the double recovery issue, finding no basis to reduce the guaranteed debt by the settlement proceeds.

The respondent sought an order for security for costs from the appellants under Rule 61.06(1)(a) and (c) of the Rules of Civil Procedure.

The appellants had been ordered to pay judgment in the amount of $723,479.66 plus interest at 12 percent per annum following a trial decision.

The motion judge considered whether the appeal was frivolous and vexatious and whether the appellants had insufficient assets in Ontario to pay costs.

While the motion judge found that the respondent had made out a reason for the order based on the appellants' apparent lack of Ontario assets and evidence of asset disposition, the motion was dismissed due to the respondent's delay in bringing the motion and the fact that most appeal costs had already been incurred.

A judgment released on May 27, 2019 in this appeal was withdrawn due to a procedural error.

One member of the three-judge panel that heard the appeal, Justice Huscroft, was not provided with either the draft or final judgment for review or signature.

The judgment was signed in error by a justice who was not a member of the hearing panel.

The court determined that the judgment was of no force or effect and that the appeal must be re-heard by a differently constituted panel.

This is a costs endorsement following an appeal where the appellants were successful in overturning orders from the Superior Court of Justice.

The respondents had been successful on the main issue regarding whether a possible third party claim constituted a chose in action that vested in the Trustee in Bankruptcy.

However, the appellants were successful in obtaining the right to have the issue of whether they should be allowed to advance third party claims heard and determined within the section 37 application.

The court found divided success on the appeal.