Ian J. Klaiman

The plaintiff bank brought a motion for summary judgment to enforce personal guarantees signed by the defendant for corporate loans.

The defendant opposed the motion, arguing non est factum and undue influence by the third party, who controlled the corporations and assured her she would face no personal liability.

The court dismissed the bank's motion, finding genuine issues for trial regarding the defendant's carelessness and the lack of independent legal advice.

The court granted partial summary judgment to the defendant on her third-party claim for indemnity against the third party.

The plaintiff Bank brought a motion for summary judgment to enforce personal guarantees given by the defendants in respect of a corporate borrower's obligations.

The defendant guarantor did not dispute the default but argued the Bank failed to mitigate its damages by properly protecting its security.

The court rejected this defence, noting the Bank had taken steps to protect its security in related insolvency proceedings, and granted summary judgment against the guarantor for the principal amounts owing plus contractual interest.

The appellant, an undischarged bankrupt, sought an extension of time to file a notice of appeal from a lower court order that declared his debts would survive bankruptcy and lifted a stay of proceedings.

The respondent opposed the extension, arguing there was no right to appeal without leave and that the appeal lacked merit.

The respondent also brought a cross-motion for security for costs.

The Court of Appeal granted the extension of time, finding that the appellant had a right to appeal under sections 193(c) and 193(a) of the Bankruptcy and Insolvency Act, and that the proposed appeal had arguable merit.

The court dismissed the respondent's cross-motion for security for costs, concluding that the "other good reason" test under Rule 61.06(1)(c) of the Rules of Civil Procedure was not met, given the appellant's impecuniosity and the arguable merit of the appeal.

This motion concerned whether a debt arising from a consent judgment, obtained by M.O.S. MortgageOne Solutions Ltd. (MOS) against William Heidary, would survive Heidary's discharge from bankruptcy under sections 178(1)(d) and (e) of the Bankruptcy and Insolvency Act (BIA), and whether the bankruptcy stay should be lifted.

MOS argued that the underlying amended statement of claim pleaded fraud and invoked BIA s. 178(1)(d), and that Heidary's consent to judgment merged these issues into the judgment, making it a debt not released by bankruptcy.

Heidary contended that fraud was not proven and the judgment made no explicit reference to its survival post-bankruptcy.

The court found that the underlying pleadings, which clearly raised fraud and the applicability of s. 178(1)(d), were sufficient for the debt to survive bankruptcy, even without explicit mention in the consent judgment.

The court granted the declarations sought by MOS.

The plaintiff employer sought an interlocutory injunction to restrain a former employee from competing, soliciting customers, or using confidential information.

The court applied the strong prima facie case standard because the injunction would restrict the employee's livelihood.

The court found the restrictive covenant had expired years prior, the employee was not a fiduciary, and the customer list was not proprietary confidential information.

The motion for an injunction was dismissed, but a sealing and protective order was granted on consent.

The plaintiff brought a motion to find the defendants in contempt of an interim order requiring them to deliver up confidential information.

The former employee defendant had retained some confidential information on his personal computer and cellphone, but disclosed this fact and subsequently deleted the computer files.

The court found that while there was non-compliance, the plaintiff failed to prove beyond a reasonable doubt that the breach was intentional.

The contempt motion was dismissed, but the court ordered the defendant to delete remaining contacts from his cellphone and submit to cross-examination.

The plaintiff brought a motion for a declaration that the defendant's liability for misappropriating trade secrets would not be released upon his discharge from bankruptcy, and for an order lifting the bankruptcy stay to proceed with the damages trial.

The court found that the defendant's conduct in knowingly using the plaintiff's confidential information to manufacture competing products constituted 'false pretences' under section 178(1)(e) of the Bankruptcy and Insolvency Act.

The court granted the declaration and lifted the stay without terms, allowing the plaintiff to proceed with the damages phase of the trial.

The applicant sought a declaration that a prior court order, which directed the respondent's share of matrimonial home sale proceeds be held in trust as security for spousal support claims, made her a secured creditor under the Bankruptcy and Insolvency Act.

The respondent subsequently made an assignment in bankruptcy.

The court held that the prior order was merely a preservation order and did not create a secured creditor interest.

Consequently, the respondent's share of the proceeds vested in the Trustee in Bankruptcy, and a previous costs award paid to the applicant from those proceeds was set aside.

The applicant vendor brought a motion for leave to obtain a writ of possession for an industrial property after the respondent purchaser breached a settlement agreement by failing to pay municipal taxes on time.

The respondent cured the breach by paying the tax arrears before the hearing and sought relief from forfeiture.

The court applied the three-part test for relief from forfeiture, noting the applicant's own failure to fulfill environmental remediation obligations under the agreement.

Finding that forfeiture of a multi-million dollar property for a cured tax default would be disproportionate, the court granted relief from forfeiture and dismissed the motion.

The tenant brought a motion in the Divisional Court for an extension of time to appeal a previous Divisional Court order that had quashed her appeals from the Landlord and Tenant Board.

The court dismissed the motion for lack of jurisdiction, noting that appeals from the Divisional Court lie to the Court of Appeal with leave.

Finding the tenant's conduct—including repeatedly trespassing after eviction and filing false applications with the Board—to be a continuing abuse of process, the court prohibited the tenant from commencing further proceedings in the Superior Court without leave and awarded costs to the landlords.

The respondent landlords brought motions to quash the tenant's appeals from two Landlord and Tenant Board eviction orders.

The tenant had a history of rent arrears and property damage, and failed to appear for the motion hearing.

The Divisional Court found that the appeals did not raise extricable questions of law and were pursued as an abuse of process to obtain the automatic stay of eviction.

The motions to quash were granted, the stays were lifted, and costs were awarded to the landlords.

The Debtor appealed a Master's order lifting a stay of proceedings under the Bankruptcy and Insolvency Act (BIA), which had arisen upon the Debtor's filing of a proposal.

The Master found that the Respondent creditor would be materially prejudiced by the continued stay and that it was equitable to lift it, allowing the Respondent's $1 million claim to be quantified in a civil action rather than through the summary procedure under s. 135 of the BIA.

The appeal court upheld the Master's decision, finding no error in concluding that the Respondent had established some chance of success in its civil action and that the civil action was the appropriate forum for determining the complex, credibility-dependent claim against both the Debtor and a co-defendant, thereby avoiding inconsistent findings and prejudice.

The City of Toronto prosecuted a home comfort equipment retailer and lessor for carrying on the business of a plumbing contractor without a licence, contrary to Chapter 545 of the Toronto Municipal Code.

The defendant hired independent plumbing companies to install and remove a carbon water filter that it leased to a consumer.

The court found that the defendant did not carry on the business of a plumbing contractor within the meaning of the regulatory scheme.

The court distinguished between the business of leasing chattels and the actual performance of plumbing work, which was conducted by licensed independent plumbers.

The court dismissed the charge, finding that a broad interpretation of "plumbing contractor" would lead to absurdity and would require property management companies, building superintendents, and hardware stores to maintain exclusive master plumbers on staff.

The defendant George Pappas moved to set aside a default judgment obtained by the plaintiff Lucy Romero, arguing irregularity in the judgment and offering an explanation for default.

The court found a clear irregularity as the judgment ordered Pappas to pay a sum not requested in the statement of claim against him.

The court also considered the test for setting aside default judgment, finding Pappas's explanation plausible and an arguable defence, with no prejudice to the plaintiff.

The motion to set aside the default judgment against Pappas was granted, and all enforcement proceedings against him were stayed.

The creditor sought to lift a stay of proceedings under s. 69.4 of the Bankruptcy and Insolvency Act to allow a civil action for loans and punitive damages to proceed to judgment.

The creditor argued material prejudice and that the debt should survive discharge under s. 178(1)(e) due to fraudulent misrepresentation.

The court found no causal connection between the alleged misrepresentations and the creation of the debt, and that the pleadings lacked particularity for fraud.

The court also determined that the prejudice was subjective, not objective, and that lifting the stay would imperil the approved consumer proposal, which was more favourable to creditors than bankruptcy.

The motion was denied.

The defendants successfully resisted a portion of the plaintiff's motion for summary judgment regarding a fraudulent conveyance claim.

The successful defendant sought costs on a substantial indemnity basis, relying on an offer to settle that reflected the procedural result but contained no financial proposal.

The plaintiff argued for costs in the cause or a reduced partial indemnity award.

The court awarded the defendant costs on a partial indemnity basis, fixed at $7,500 inclusive of disbursements and taxes.

The defendants, Alfonso and Helen Fulchini, moved to discharge a Certificate of Pending Litigation (CPL) registered on Helen's property, Elizabeth Grove, which was obtained ex parte by the Bank of Nova Scotia (BNS).

The BNS's claim to an interest in the land was based on an alleged fraudulent conveyance by Alfonso to Helen of proceeds from the sale of another property, Easy Street, which were then traced into Elizabeth Grove.

The court found that the BNS had a reasonable claim to an interest in Elizabeth Grove, citing several "badges of fraud" in the transfer of funds between the spouses and the lack of credible evidence of consideration.

The court also rejected the defendants' arguments that damages were an adequate alternative remedy and that the CPL should be discharged due to non-disclosure by the BNS at the ex parte motion.

The motion to discharge the CPL was dismissed, though the court allowed for the CPL to be discharged if the defendants posted cash security.

The plaintiff bank brought a motion for summary judgment against the defendants for debts owed on guarantees and to set aside a property transfer as a fraudulent conveyance.

The defendants acknowledged the debt but opposed summary judgment on the fraudulent conveyance claim, arguing the transfer to the spouse was done for estate planning and financing purposes following a severe cancer diagnosis.

The court granted summary judgment for the debt but dismissed the motion regarding the fraudulent conveyance, finding that a trial was necessary to properly assess credibility and intent.

The appellants appealed a summary judgment enforcing a personal guarantee for a small business loan and setting aside the transfer of a matrimonial home as a fraudulent conveyance.

The appellants argued the Bank's refusal to provide information about the primary debtor's account rendered the guarantee unconscionable or breached a duty of honest performance.

The Court of Appeal found the Bank breached a contractual disclosure obligation but held this did not discharge the guarantee because the guarantor failed to prove any resulting prejudice or damages.

The court also upheld the finding that the property transfer was a fraudulent conveyance.

The appeal was dismissed.

The plaintiff brought a motion under section 103 of the Courts of Justice Act and Rule 42.01 of the Rules of Civil Procedure seeking leave to issue a certificate of pending litigation over residential property allegedly transferred to defeat creditors.

The court found the plaintiff demonstrated a high probability of success on its guarantee claim against the individual defendant following the corporation’s default.

Evidence suggested the transfer of the property to the defendant’s spouse for no consideration bore several badges of fraud, including the intention to place assets beyond the reach of creditors while continuing to benefit from the property.

The court concluded the balance of convenience favoured preserving the property pending resolution of the action.

Leave to issue the certificate of pending litigation was granted and a litigation timetable was imposed.