Howard W. Reininger

Two consolidated appeals concerning whether a claim for contribution and indemnity represents property of a bankrupt that vests in the Trustee under section 71 of the Bankruptcy and Insolvency Act, and whether a bankrupt can advance such a claim when the Trustee refuses to do so and a creditor has obtained a lifting of the stay of proceedings.

The appellants sought to issue third party claims for contribution and indemnity against a co-defendant.

The motion judge dismissed the motion, finding that the claim constituted property vested in the Trustee and that the undischarged bankrupt lacked capacity to deal with it.

The Court of Appeal allowed the appeal, holding that a claim for contribution and indemnity is property under the BIA and that the motion judge erred in failing to consider relief under section 37 of the BIA.

The defendants brought a motion to transfer the action from Hamilton to Toronto under Rule 13.1.02 of the Rules of Civil Procedure.

The action had already been ordered to be tried together with a companion action in Hamilton, and the motion was brought on the eve of trial.

The defendants argued they could not arrange for their expert to testify remotely in Hamilton.

The court found insufficient evidence to support this claim and concluded the defendants failed to establish that Toronto was a significantly better venue.

The motion was dismissed to avoid unfairly delaying the trial.

The plaintiffs sought leave to amend their Statement of Claim to add numerous corporate and individual defendants in an action alleging oppression and wrongful dismissal related to a restaurant business.

The motion was brought under Rule 5.04(2) to add parties and rectify an improperly filed amended statement of claim.

The court allowed the addition of some proposed defendants, including individuals connected to the directing minds of the business and certain corporate entities, finding that the 'litigating finger' pointed towards them.

However, the court dismissed the request to add a second group of 'New Franchisees,' determining that the pleading did not disclose a tenable cause of action against them and that their addition would lead to unnecessary expense and delay.

Costs were awarded to both partially successful parties.

The appellant wife appealed a trial judgment dismissing her claims for equalization of net family property and a beneficial interest in the former matrimonial home.

The parties had separated in 2006, settled all matters through a Minutes of Settlement in 2007, and reconciled at the end of May 2007.

Upon reconciliation, the wife received a disability payment which was deposited into the husband's account and used to pay household bills and mortgage.

The husband later transferred the home to his mother.

The trial judge upheld the validity of the Minutes of Settlement and dismissed the wife's claims.

The appellate court affirmed, finding that the Minutes of Settlement clearly expressed the parties' intention to exclude future property from equalization upon reconciliation, and that the wife failed to establish a resulting trust claim.

This family law application proceeded to trial regarding equalization of net family property, a trust claim over the matrimonial home, and a restraining order.

The court upheld a 2007 separation agreement as valid and binding, which explicitly precluded further equalization upon reconciliation and subsequent separation.

The applicant's claim for a resulting, implied, or constructive trust over the Rutherford Road property against her former husband and mother-in-law was dismissed, as she had legally transferred her interest in 2007, and the former husband had subsequently transferred it to his mother in 2010.

The request for a restraining order was denied due to lack of evidence.

The court ordered the discharge of a certificate of pending litigation and that the applicant vacate the property.

The plaintiff, Equitable Bank, sought summary judgment for the outstanding balance of a mortgage after the defendant defaulted on monthly payments.

The defendant opposed, arguing he had substantially paid what was owed and wished to reinstate the mortgage.

The court found that the defendant had demonstrated a willingness and ability to make payments, having paid more than the total monthly payments due since the default.

Exercising its equitable discretion under the Mortgages Act, the court declined to grant summary judgment and instead ordered the plaintiff to provide a statement of amounts required to bring the mortgage into good standing, allowing the defendant 60 days to pay.

The defendant was also ordered to resume regular payments and pay reduced costs to the plaintiff.

The defendants moved to dismiss the plaintiff's construction lien actions or, alternatively, to stay them, arguing the liens had expired due to the plaintiff's corporate dissolution and the actions being struck from or not added to the trial list.

The court found that the liens had not expired because the actions were properly 'set down for trial' as per the Construction Lien Act, distinguishing this from being placed on a trial list.

However, the court granted the alternative relief, staying the actions until the plaintiff corporation was revived or obtained leave to proceed under the Corporations Information Act, as it lacked standing due to dissolution.

The defendants moved to set aside a default judgment obtained after their statement of defence had been struck for failure to deliver an affidavit of documents.

Applying Rule 19.08(2) of the Rules of Civil Procedure and the governing three-part test, the court considered the promptness of the motion, the explanation for the default, and whether the defendants had an arguable defence on the merits.

The court found the defendants acted promptly after learning of the judgment and provided a reasonable explanation for their failure to respond to the motion to strike.

The defendants also advanced arguable defences concerning the execution of mortgage acknowledgements, the scope and validity of personal guarantees, and potential limitation period issues under the Limitations Act, 2002 and the Real Property Limitations Act.

In the interests of justice, the court set aside the noting in default and the default judgment and permitted amendments to the statement of defence.

The moving parties sought judgment enforcing a settlement agreement under Rule 49.09 of the Rules of Civil Procedure and declaratory relief under s. 97 of the Courts of Justice Act.

The dispute concerned the interpretation of settlement terms requiring an accounting of profits, dividends, management fees, and payments derived from a medical centre business, and whether certain legal expenses and management fees constituted benefits received or derived by the responding parties.

The court preferred the evidence of the moving parties’ expert accountant, finding that payments for legal fees and management services constituted benefits derived by the responding parties rather than excluded loan repayments.

The accounting determined that additional funds were owed under the settlement and that the responding parties were required to transfer shares in the corporation.

Judgment was granted enforcing the settlement terms and ordering payment of the additional sums and transfer of shares.

Following a motion enforcing signed Minutes of Settlement, the court determined costs.

The defendants, who were successful on the motion enforcing the settlement, sought substantial indemnity costs after the self‑represented parties attempted to resile from the settlement reached at mediation.

Applying the principles from Boucher v. Public Accountants Council for the Province of Ontario and Rule 57 of the Rules of Civil Procedure, the court emphasized that costs must be fair and reasonable rather than a strict calculation of hours multiplied by rates.

The court reduced the amounts claimed due to concerns about duplication of work and excessive hours.

Costs were awarded to the successful defendants in reduced amounts.

A creditor applied for a bankruptcy order against the debtor under the Bankruptcy and Insolvency Act, alleging acts of bankruptcy including ceasing to meet liabilities generally as they became due and exhibiting a statement of assets and liabilities showing insolvency.

The court held that the applicant established a prima facie case that the debtor had ceased to meet liabilities generally, based on an unsatisfied judgment debt and unpaid tax arrears to the Canada Revenue Agency within the relevant six‑month period.

The debtor failed to provide independent evidence demonstrating the ability to meet liabilities or establishing a binding arrangement with the tax authority that would negate the inference of general non‑payment.

The court rejected the argument that the bankruptcy application was brought for an improper purpose.

The debtor was adjudged bankrupt and a trustee appointed.

Costs decision following a summary judgment motion where both sides achieved partial success.

The defendant obtained orders striking the personal plaintiff’s claim and a claim for damages for improvident sale.

However, the corporate plaintiff succeeded on the primary issue concerning the mortgagee in possession’s responsibility to insure the corporate plaintiff’s interest.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court held that the corporate plaintiff should receive reduced costs to reflect the divided success.

On a defendant mortgagee's summary judgment motion, the court considered whether a mortgagee in possession owed and breached a duty to act prudently regarding insurance of the mortgagor's property interest after cancellation of coverage.

The record contained material conflicts on notice of cancellation, communications between agents, and whether reliance on the mortgagee's blanket insurance could reasonably be inferred, requiring credibility assessments not suitable for summary judgment.

Applying summary judgment principles, the court held that genuine issues requiring a trial remained on duty, breach, causation, and damages, including potential accounting issues tied to any insurance recovery.

The court granted limited summary judgment only to strike the personal plaintiff's claim and the improvident sale allegation, and otherwise dismissed the motion.

Following a successful summary judgment motion dismissing a civil action, the defendant sought costs on a substantial indemnity basis.

The court considered Rule 20.06 of the Rules of Civil Procedure and the discretionary factors under s.131 of the Courts of Justice Act and Rule 57.01.

The moving party argued the claim lacked merit and that litigation conduct justified punitive costs.

The court held that the plaintiffs’ conduct was not sufficiently reprehensible, scandalous, or outrageous to justify substantial indemnity costs and that no Rule 49 offers to settle were made.

Partial indemnity costs were awarded with minor reductions to hours and disbursements.