James Murray Butson

The applicant mortgagee sought an order under s. 52 of the Mortgages Act to set aside a tenancy agreement, arguing it was entered into by the mortgagors after default with the object of discouraging the mortgagee from taking possession or adversely affecting its security.

The court applied a three-pronged test, finding that while the tenancy was entered into after a default (non-payment of municipal taxes), the mortgagors' primary object was to mitigate their financial difficulties from owning two properties, not to harm the mortgagee.

The application was dismissed.

The moving party, Peter Grivogiannis, sought a permanent stay of a third-party claim brought by Pamela Downward, or in the alternative, an order for discovery from Rajan Kaushal.

The motion was based on the alleged non-disclosure of a settlement between Pamela Downward and Rajan Kaushal in the third-party claim.

The court dismissed the motion, finding that the settlement did not significantly alter the litigation landscape and that the non-disclosure was due to inadvertence rather than a deliberate attempt to mislead.

The appellant, a self-represented mortgagor in default, brought three motions in connection with his appeal of a summary judgment order granting the respondent bank possession of mortgaged residential property in Grimsby, Ontario.

The appellant sought appointment of a McKenzie friend, adjournment of the appeal, and directions regarding disbursement of sale proceeds.

The court dismissed all motions, finding no credible evidence of need for a McKenzie friend, rejecting the appellant's attempt to circumvent the bank's statutory obligations under the Mortgages Act regarding distribution of sale proceeds, and noting that complaints about costs must be addressed through assessment officer proceedings.

The plaintiff brought a motion for summary judgment seeking possession of a property pursuant to a reverse mortgage that went into default due to unpaid property taxes.

The self-represented defendant did not deny the default but raised unclear allegations of fraud and unreasonableness.

The court applied the Hryniak framework, found no genuine issue requiring a trial, and granted the plaintiff's motion for possession, awarding partial indemnity costs of $9,000.

The appellant appealed an order dismissing her motion to set aside a summary judgment granted in favour of the respondent bank for a shortfall on a repossessed motorcycle.

The appellant claimed her signature on the guarantee was forged by her deceased husband.

The Court of Appeal upheld the dismissal, finding the appellant failed to meet her burden of demonstrating grounds to set aside the judgment, provided no expert evidence of forgery, offered no adequate explanation for the two-and-a-half-year delay, and would have caused prejudice to the respondent given the four-year delay in enforcement.

Following a proceeding, the successful defendant submitted a costs outline.

The court considered the factors under Rule 57 of the Rules of Civil Procedure, including proportionality, time spent, and complexity.

Applying the principles from Boucher and Davies, the court fixed costs at an amount fair and reasonable for the unsuccessful party to pay.

The plaintiffs were ordered to pay $3,500 all-inclusive to the successful defendant.

The appellant mortgagee appealed a motion judge's decision granting summary judgment for default under a mortgage but ordering that the judgment be held in abeyance until September 15, 2017, subject to the mortgagors making specified payments.

The appellant contended the motion judge lacked jurisdiction to impose such conditions.

The Court of Appeal found that the order amounted to a stay of execution, which is an interlocutory order from which there is no right of appeal to the Court of Appeal.

The court determined that jurisdiction properly lay with the Divisional Court.

The Plaintiffs discontinued their action against the Defendant Computershare Trust Company of Canada c/o First National Financial LP ("First National").

First National then brought a motion for costs, seeking $11,094.45.

The remaining Defendants, Mark Hamelin and Tracy Hamelin, supported First National's request.

The Plaintiffs opposed the motion.

The court applied the "justified action test" under Rule 23.05 and Rule 57.01, finding that while the Plaintiffs were justified in initially investigating First National's mortgage, they were not justified in continuing their claim seeking priority over First National's Charge.

The court determined that First National was not a proper party to the action as it did not advance a construction mortgage.

Consequently, the Plaintiffs were ordered to pay First National $6,500.00 in costs on a partial indemnity basis.

The Hamelins' request for costs for responding to the motion was denied.

The appellants failed to appear for the hearing of their appeal scheduled before the Court of Appeal for Ontario, despite the case being held down until 11:25 a.m.

The appellants had previously requested an adjournment which was refused.

The appeal was dismissed as abandoned, and costs were fixed in favour of the respondent.

The applicant sought an extension of time to perfect an appeal to the Court of Appeal from an order requiring her to submit to a mental capacity assessment.

The respondent condominium corporation opposed the extension, arguing that the underlying order was interlocutory and therefore the Court of Appeal lacked jurisdiction to hear the appeal.

The court found that the order was indeed interlocutory in nature, as it was procedural and did not finally dispose of the rights of the parties.

The court refused to grant the extension, finding that it would not be proportionate or in the interests of justice to prolong proceedings given the enormous costs incurred relative to the amounts in issue, and that the appeal should have been brought to the Divisional Court.

The plaintiff bank sought summary judgment against the defendant guarantor for a mortgage deficiency.

The defendant argued her guarantee was released due to lack of notice regarding mortgage renewal and the bank's negligence in withdrawing funds, and challenged the quantum of damages.

The court found that a default occurred and the guarantee remained valid and enforceable, as the mortgage was not renewed and the bank's errors did not release the guarantor.

However, the court identified genuine issues requiring a trial regarding the appropriateness of the claimed damages, including administrative fees, property management fees, real estate commission, and legal fees.

Consequently, the motion for summary judgment was denied, and a mini-trial was ordered to determine the quantum of damages.

The plaintiff sued his condominium corporation and mortgagee for damages arising from a long-running dispute over replacement windows, condominium arrears, lien enforcement, mortgage default, eviction, and power of sale.

On summary judgment motions, the court held that most issues had already been conclusively determined in prior orders, including the condominium arrears, the mortgagee's payment of those arrears, the resulting default under the charge, possession, and the propriety of the sale process, such that res judicata, cause of action estoppel, and issue estoppel barred relitigation.

The court also held that the claims against the condominium corporation were independently statute-barred under s. 4 of the Limitations Act, 2002.

However, the bank failed to adduce sufficient documentary evidence concerning certain post-judgment management fees, post-judgment legal fees and expenses, and alleged post-judgment mortgage withdrawals, and those limited issues were left for trial.

The appellant appealed a summary judgment granted to the respondent bank based on her default under a mortgage on a condominium property.

The appellant had stopped making principal, interest, and common element fee payments.

The appellant raised defences including that her name had been expropriated and that she was a tenant rather than an owner.

The Court of Appeal found no genuine issue requiring a trial and dismissed the appeal, awarding costs to the respondent.

The respondent brought a motion to quash the appellant's appeal from an order refusing to strike fraud allegations in the Statement of Defence.

The appellant conceded that the order appealed from was interlocutory.

The Court of Appeal quashed the appeal and awarded costs to the respondent on a substantial indemnity basis.

The appellant son appealed a judgment setting aside the transfer of his mother's home to him based on non est factum and undue influence, and dismissing his counterclaim for equitable remedies.

The Court of Appeal upheld the trial judge's findings, noting the mother's limited English, recent widowhood, and lack of independent legal advice.

The counterclaim was properly dismissed due to the appellant's lack of clean hands and prematurity.

The appeal and a related motion were dismissed with costs.

A mortgagee applied to pay surplus sale proceeds from a power of sale into court where competing claims existed between joint mortgagors and an execution creditor.

One respondent had filed a consumer proposal under the Bankruptcy and Insolvency Act and argued the execution creditor’s writ could not attach to her share of the surplus due to the statutory stay.

The court held that a writ of execution filed with the sheriff constitutes an encumbrance and a subsequent encumbrancer under s. 27 of the Mortgages Act.

Accordingly, the execution creditor had to be paid from the surplus before any residue became payable to the mortgagors.

The remaining residue was divided equally between the joint owners.

In a reference to determine the distribution of proceeds from a mortgage sale, the first mortgagee sought to claim increased fees and expenses arising from amending agreements entered into with the mortgagor after the second mortgagee registered its charge.

The court held that the second mortgagee was not bound by the amending agreements, as it had no notice of them at the time of registration.

The first mortgagee was only entitled to claim fees specifically set out in the registered mortgage and standard charge terms.

The increased fees were disallowed and legal fees were reduced.

Following dismissal of the plaintiff bank’s summary judgment motion on personal guarantees under the simplified procedure, the defendants sought substantial indemnity costs of over $18,000.

The court rejected arguments that contractual provisions or the plaintiff’s decision to pursue summary judgment justified elevated costs.

The court held that substantial indemnity costs generally require reprehensible conduct, which was not established.

The claimed hours and duplication caused by a change of counsel rendered the defendants’ bill excessive.

Costs were therefore fixed on a partial indemnity basis in a reduced all‑inclusive amount.

The appellant appealed a summary judgment granted to the respondent bank on a line of credit.

The appellant argued that the bank breached the agreement by making advances without the authorization of both signatories.

The Court of Appeal found the line of credit agreement ambiguous on its face regarding whether 'the Customer' meant one or both signatories.

Concluding that this ambiguity required extrinsic evidence and a trial, the Court allowed the appeal and dismissed the motion for summary judgment.

The plaintiff bank brought a motion for summary judgment to recover amounts owing under a small business line of credit and a personal guarantee.

The defendants argued that the bank had effectively created a new loan with different terms and that the claim against the guarantor was statute‑barred because the guarantee was described as “continuing, absolute and unconditional.” The court found there was no new loan, only an internal reclassification of the same demand credit facility, and the contractual interest rate remained unchanged.

It further held that where a guarantee requires payment on demand, the demand is a condition precedent to liability and to the commencement of the limitation period under the Limitations Act, 2002.

As the demand and action were brought within the limitation period and no genuine issue required a trial, summary judgment was granted.