Howard W. Reininger

The moving defendant sought to set aside an earlier summary judgment on a personal guarantee arising from minutes of settlement in mortgage litigation, alleging lack of service and an irregularity because the issued order omitted a judicial sale term found in the endorsement.

The court held that alternate service at the defendant’s residence was effective under Rule 16.03(5), and that the prior ruling was a summary judgment, not a default judgment.

Applying issue estoppel principles, the court found the defendant was barred from re-litigating liability on the guarantee.

The omission of the judicial sale term did not justify setting aside the entire judgment, particularly because the properties had already been sold.

The court declined to determine on the motion whether the guarantee had been substantially satisfied, but authorized a separate application for interpretation of the minutes of settlement and an accounting.

Following the quashing of the defendant's appeals, the plaintiff sought costs on a substantial indemnity basis, arguing the defendant's conduct constituted an abuse of process.

The court reviewed the standard for elevated costs and found the defendant's conduct was not reprehensible, scandalous, or outrageous.

The court awarded costs to the plaintiff on a partial indemnity scale, fixed at $6,000.

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 appellant sought to enforce a $300,000 promissory note and personal guarantees against the respondents after their family company went bankrupt.

The trial judge found the family members were not liable based on the defence of non est factum.

On appeal, the Court of Appeal reversed this finding, holding that the family members were careless in signing the guarantee without reading it and that there was no misrepresentation.

The respondents' cross-appeal alleging lack of consideration was dismissed.

The appeal was allowed and judgment was granted against the family members.

The appellants appealed a motion judge's order requiring them to pay an additional $528,113 pursuant to a settlement agreement.

The appellants argued the motion judge erred in accepting the evidence of the respondents' expert accountant regarding management fees, professional fees, and benefits.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings or his decision to prefer the expert's evidence over that of an interested party, especially since the appellants did not object to the report's admissibility or file their own expert report.

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.

The appellants appealed a judgment enforcing a settlement and release, as well as the associated costs order.

The Court of Appeal dismissed the appeal on the merits, finding no surprise or prejudice to the appellants regarding the settlement issue and agreeing with the motion judge's reasons.

However, the Court granted leave and allowed the appeal regarding costs, finding no basis for an award exceeding partial indemnity.

The costs order below was set aside and replaced, and costs of the appeal were awarded to the respondents.

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.

The surviving spouse brought an application for directions regarding the administration of an estate after the deceased died intestate following a marriage that revoked a prior will.

The respondents, the deceased’s mother and brothers, argued that a pre‑marital agreement waived the spouse’s entitlement to the matrimonial home and that the property should pass to the deceased’s surviving parent under the Succession Law Reform Act.

The court held that the agreement contained no direct and cogent language relinquishing the spouse’s rights on intestacy under the Succession Law Reform Act.

The provisions relied upon addressed separation or divorce rather than death and therefore did not constitute a waiver of inheritance rights.

The court appointed the surviving spouse as estate trustee without a will and declared her the sole beneficiary of the estate.

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.

The appellant signed a guarantee included within a registered mortgage document.

Following a default and power of sale resulting in a deficiency, the mortgagee sued the appellant on the guarantee.

The appellant moved for summary judgment, arguing the action was statute-barred under the two-year limitation period for demand obligations in the Limitations Act, 2002.

The motion judge dismissed the motion, finding the ten-year limitation period under the Real Property Limitations Act applied.

The Court of Appeal upheld the decision, confirming that guarantees found in a mortgage instrument are governed by the Real Property Limitations Act.

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.

The appellant purchased a coin car wash business from the respondent and gave a vendor take back mortgage.

The appellant later sued for fraudulent misrepresentation regarding business revenues and breach of warranty regarding a pylon sign.

The motion judge granted summary judgment dismissing the action and allowing the respondent's counterclaim on the mortgage.

The Court of Appeal dismissed the appeal, finding no genuine issue for trial given the entire agreement clause and the lack of evidence supporting the claims.

The appellants appealed a trial judgment enforcing an Indemnity Agreement and collateral demand mortgages.

The Court of Appeal upheld the trial judge's findings that the Indemnity Agreement was a specialty subject to a 20-year limitation period and that the action on the collateral mortgages was brought within the 10-year limitation period, which commenced when moneys were advanced under the primary indemnity obligation.

However, the Court allowed the appeal in part, finding that the trial judge erred by granting judgment on the mortgage covenants for an amount in excess of the primary indemnity debt, as the mortgages were collateral security.

The appellants appealed a trial judgment awarding costs in the form of damages and substantial indemnity costs against Westmont.

The Court of Appeal set aside the award of costs as damages due to lack of specificity in the pleadings.

The Court upheld the substantial indemnity costs for the main claim under Rule 49.10, but found that Rule 49 should not apply to the counterclaim against Westmont, as it was not a party to the counterclaim.

The costs award was apportioned and reduced to $190,000.

The appellant's husband gave a mortgage to the respondent to secure a loan, which the appellant guaranteed.

When the mortgage matured, the husband forged the appellant's signature on a renewal agreement without the respondent's knowledge.

After the husband defaulted, the respondent sold the property under power of sale and sued the appellant for the deficiency.

The Court of Appeal dismissed the appellant's appeal, holding that the clear and unambiguous language of the original guarantee bound her until the moneys originally advanced were fully paid, regardless of the forged renewal.

The moving party brought a motion to quash an appeal.

The responding party failed to appear despite being advised of the hearing date.

The Court of Appeal proceeded with the motion and held that the appeal was barred by section 7(6) of the Arbitration Act.

The motion was granted, the appeal was quashed, and costs of $2,000 were awarded to the moving party.

The appellants, who were non-parties to the bankruptcy proceedings, appealed a trial judge's order awarding costs against them.

The trial judge had dismissed the bankruptcy petitions against the respondents, finding they were brought for an improper collateral purpose and constituted an abuse of process orchestrated by the appellants.

The Court of Appeal upheld the costs order, noting that section 197(1) of the Bankruptcy and Insolvency Act gives the court broad discretion regarding costs, and that special policy considerations justify harsher costs consequences against persons who misuse the bankruptcy court for improper collateral purposes.