3 total
Power of sale invalid where notice not served and mortgage amount materially overstated.
Subsequent mortgagees challenged the validity of a first mortgagee’s power of sale of a Toronto property, alleging they were never served with the required notice and that the notice misstated the amount owing under the mortgage.
The court found the notice of sale had not been served on the subsequent encumbrancers due to a mailing error and that the amount claimed owing was materially overstated through the improper inclusion of pre‑assignment expenses.
As a result, the statutory requirements of the Mortgages Act were not satisfied and the power of sale was invalid.
The purchaser was a bona fide purchaser for value but had actual notice that the validity of the sale was being challenged and therefore could not rely on statutory protections for “professed compliance.” The purchaser and related subsequent mortgagees did not obtain valid title or charges as against the applicants, though the independent first mortgagee lender retained a valid interest.
Insurer's appeal dismissed; extrinsic evidence confirmed D&O policy covered executives' defence costs despite subsidiary exclusion.
The appellant insurer appealed a trial judgment awarding the respondent insureds US$15 million under a directors' and officers' liability policy for defence costs incurred in a US action.
The trial judge had been directed by the Court of Appeal to hear extrinsic evidence to resolve an ambiguity in a specific entity subsidiary exclusion endorsement.
The Court of Appeal upheld the trial judge's finding that the extrinsic evidence demonstrated the parties mutually intended for the policy to cover the executives for wrongful acts committed in their capacity as executives of the parent company.
The Court also upheld the finding that the insurer was not entitled to set off the amounts owing against payments made under a separate run-off policy.
Material excerpted from settlement conference brief held privileged.
In a bankruptcy proceeding on the Commercial List, counsel alerted the court that its earlier endorsement had not addressed a specific tab in the Brief of Privileged Documents.
The court considered whether the materials contained in that tab were privileged.
Because the tab excerpted material from a settlement conference brief previously held to be privileged, the court confirmed that the tab itself was also privileged.
The endorsement was corrected by way of corrigendum to reflect that determination.
