James Riewald

The appellants, registered owners of an Oakville property, sought to extend the time to appeal and stay a summary judgment order granting the respondent mortgage lender possession of the property.

The appellants had defaulted on their mortgage obligations and were facing eviction.

They claimed they did not understand the mortgage documents and were manipulated into signing them, and that the electronically signed documents were invalid.

The motion judge found no evidence of fraud or unconscionable conduct and granted summary judgment.

The Court of Appeal dismissed both the motion to extend time and the motion to stay, finding no serious grounds of appeal and insufficient evidence of irreparable harm.

The court noted that loss of a home due to mortgage default does not automatically constitute irreparable harm, particularly where the parties agreed to the mortgage terms.

The court considered whether to dismiss the plaintiffs' action as frivolous, vexatious, or an abuse of process under Rule 2.1.01(1) of the Rules of Civil Procedure.

After reviewing the statement of claim and written submissions, the court found that the claim pleaded an arguable and discernable cause of action and should not be dismissed at this stage.

The court emphasized the robust gatekeeping function of Rule 2.1, but found that the statement of claim was not so devoid of merit as to warrant summary dismissal.

Costs were reserved to the trial judge.

The plaintiff, Home Trust Company, brought a motion for summary judgment against the defendants, Adrian Campbell and Louise Miner, seeking payment of an outstanding debt, possession of a property, leave to issue a writ of possession, post-judgment interest, dismissal of the counterclaim, and costs.

The court found the defendants in default, granted the plaintiff’s motion, dismissed the counterclaim as frivolous and vexatious, and awarded costs to the plaintiff.

Home Trust Company (HTC) applied to set aside a residential tenancy agreement between the Landlords (Ahmad Mahmood and Shanaz Bigem) and the Tenants (Uzair Rashid and Aimen Rashid) for a property under mortgage.

The Landlords had defaulted on the mortgage, and the lease was entered into after default, with rent significantly lower than mortgage payments.

The court found that the lease was made with the object of discouraging HTC from taking possession or adversely affecting the property's value, satisfying the three-pronged test under section 52 of the Mortgages Act.

Despite the Tenants' unawareness of the Landlords' circumstances, the application was granted.

The tenancy agreement was set aside, possession was granted to HTC, and the Tenants were given until November 1, 2024, to vacate, with an order to pay outstanding rent to HTC.

The Landlords were ordered to pay HTC's costs.

The appellant, Hafeez Fazl, sought a panel review of a single judge's decision to dismiss his appeal for delay.

He also requested an adjournment, initially for a religious pilgrimage, and subsequently on the grounds of being a party under a disability requiring a litigation guardian, citing a 2019 doctor's note.

The Court of Appeal for Ontario dismissed the adjournment request due to a lack of proper medical or psychiatric evidence and the absence of any application under the Substitute Decisions Act, 1992.

The panel found no error in the original dismissal of the appeal for delay, noting the underlying action had been dismissed on summary judgment as being "without a scintilla of merit" due to previous litigation on the same issues.

The motion for review was dismissed, with no order as to costs.

Erich Genseberger moved to annul the bankruptcy of Kate Alexander under s. 181(1) of the Bankruptcy and Insolvency Act, alleging insolvency was not met or that the assignment was an abuse of process due to her conduct in ongoing family law proceedings and asset dissipation.

The Trustee and other creditors opposed, arguing the Debtor was insolvent at the time of assignment and her past conduct, while problematic, did not constitute an abuse of process for annulment purposes.

The court dismissed the motion, finding the Debtor was insolvent at the time of assignment and her conduct, while frustrating, did not meet the high bar for abuse of process required for annulment.

The family law stay was lifted to allow the equalization claim to proceed, and the matrimonial home was ordered to be sold by the Trustee for the benefit of all creditors.

This is a costs endorsement following the dismissal of a motion brought by Donald Bodkin in a mortgage enforcement action.

First National Financial Corporation and the Defendants (John Doe 1 and John Doe 2) sought substantial indemnity costs from Mr. Bodkin.

Mr. Bodkin argued for no costs, citing the novelty of the case, or for partial indemnity.

The court rejected the claim for substantial indemnity, finding Mr. Bodkin's conduct did not warrant such a sanction, and also rejected the argument that the case was novel.

The court awarded partial indemnity costs to First National Financial Corporation in the amount of $9,000 and to the Defendants in the amount of $8,500, payable by Mr. Bodkin within 30 days.

The plaintiff, a party under disability, commenced an action against the bank defendants for alleged mismanagement of funds.

Three interrelated motions were heard: the plaintiff's motion for default judgment, the defendants' motion to set aside the noting of default, and the defendants' motion to strike out the claim on grounds of *res judicata* or abuse of process.

The court found that the noting of default was improperly obtained and should be set aside, dismissing the plaintiff's motion for default judgment.

The court granted the defendants' motion to strike the claim, finding that both branches of *res judicata* (cause of action estoppel and issue estoppel) applied, and that allowing the action to proceed would constitute an abuse of process, given the prior dismissal of a similar application and appeal as statute-barred.

The claim was struck without leave to amend, and costs were awarded to the defendants.

The plaintiff estate trustee brought a motion for summary judgment seeking payment on two vendor take-back mortgages and a writ of possession for the secured property.

The self-represented defendants claimed the mortgages had been paid in cash and produced discharge documents allegedly signed by the deceased.

The court found the defendants' evidence lacked credibility, contradicted objective banking and email records, and concluded the discharge documents were forgeries.

Summary judgment was granted, ordering payment of the outstanding mortgage debts, substantial indemnity costs, and a writ of possession.

The appellant appealed a summary judgment order dismissing her claims against TD Canada Trust and Dan Arcand.

The appellant failed to demonstrate any error in the motion judge's conclusion that TD Canada Trust was entitled to terminate its banking relationship with the appellant.

The appellant also failed to point to any evidence sustaining her other claims for defamation and unjust enrichment.

The Court of Appeal upheld the summary judgment and dismissed both the motion for leave to appeal and the appeal itself, awarding costs to the respondent.

The moving party, a mortgagor in default, brought a motion to set aside a default judgment obtained by the mortgagee.

The mortgagee had obtained an order for substituted service while the mortgagor was overseas and subsequently secured default judgment and a writ of possession.

Applying the five-factor test under Rule 19.08, the court found that while the motion was brought promptly and the delay was explained, the mortgagor failed to demonstrate an arguable defence on the merits.

The court also found real potential prejudice to the mortgagee given the amounts owed and the modest value of the property.

The motion was dismissed.

The defendants, the Estate of Norman A. Peel and Canadian Imperial Bank of Commerce (CIBC), brought motions to dismiss the plaintiff's action for a construction lien.

CIBC sought dismissal due to the plaintiff's failure to appoint new counsel or serve a notice of intention to act in person after his second lawyer was removed from the record.

The Estate also sought dismissal for failure to comply with the removal order and for not meaningfully pursuing the litigation.

The court found that while there were delays, the plaintiff was not solely responsible for them and had acted promptly upon becoming aware of the removal order.

The court emphasized that dismissal is a draconian remedy and found no non-compensable prejudice to the defendants.

The motions to dismiss were denied, and the action was restored to the trial list, with the plaintiff ordered to pay costs to the defendants.

The defendant brought a motion under Rule 25.11 of the Rules of Civil Procedure to strike the plaintiff's Statement of Claim, alleging no reasonable cause of action, reliance on false documents, and abuse of process.

The defendant also sought various ancillary orders, including declarations regarding financial obligations and property charges, credit rating restoration, and sealing of court files.

The court dismissed the motion, finding that the plaintiff's Statement of Claim adequately pled material facts for its claims based on a mortgage and unpaid credit card bills.

The court determined that the defendant's arguments related to the merits of the plaintiff's claim rather than the adequacy of the pleading itself, which is the focus of a Rule 25.11 motion.

The court noted several substantive issues raised by the defendant that might warrant a trial on the merits.

Costs were reserved.

The appellant appealed an order of the Superior Court of Justice dismissing an application on the basis that the limitation period had expired.

The appellant argued that the application judge should have dismissed the application on the alternative ground that the claim was improperly constituted as an application rather than an action.

The Court of Appeal held that the appeal was from the judgment, not the reasons, and dismissed the appeal.

Costs were fixed at $7,000 on a partial indemnity scale.

Lexfund Inc. brought a motion for a limited Mareva injunction to protect funds held in court in an action involving Future Health Inc. and its trustee in bankruptcy, preventing their disbursement without notice to Lexfund.

Lexfund, a creditor of the deceased solicitor Lou Ferro (whose practice was intertwined with Future Health), alleged fraud and conspiracy regarding loans made to Ferro.

The court found a strong prima facie case of fraud and an inferred risk of asset dissipation.

The court granted a modified injunction, ordering $50,000 of the approximately $125,000 in court to be paid to Ellen Helden, with the balance remaining in court pending further order and notice to Lexfund.

The judge also appointed himself case management judge for related Lexfund actions.

The appellant sought an adjournment of the appeal to allow newly retained counsel to review the file and prepare a new factum focusing on the mental impairment issue, which had not been addressed by the trial judge.

The respondent opposed the adjournment but offered alternative conditions including payment of costs thrown away.

The court granted the adjournment on conditions including payment of costs within 14 days, counsel going on record within one week, and filing of a new factum within 30 days.

The appellant appealed a summary judgment decision granting the respondent bank judgment for debts totalling $50,597.16.

The appellant raised several grounds of appeal, including alleged violations of her linguistic rights and bad faith on the part of the respondent.

The appellant also contended that the respondent failed to provide her with adequate opportunity and time to access French versions of necessary documents to verify the alleged debts, and that the respondent failed to properly credit payments made by her co-debtor pursuant to a consumer proposal agreement.

The Court of Appeal dismissed the appeal, finding that the appellant filed no evidence and did not appear at the summary judgment motion, and that the respondent's evidence clearly demonstrated the debts were incurred, remained unpaid, and the appellant was responsible for them.

The applicants brought a motion opposing the confirmation of an Assessment Officer's decision regarding a solicitor's account.

The respondent law firm had charged block fees for mortgage enforcement and power of sale proceedings without recording the time spent by lawyers and clerks.

The Assessment Officer reduced the account by approximately 21% due to the lack of recorded time.

The applicants argued for a further reduction, claiming the Assessment Officer failed to properly weigh the factors from Cohen v. Kealey & Blaney and should have applied a volume discount.

The Superior Court of Justice found no error in principle in the Assessment Officer's decision and dismissed the motion.

At a status hearing requiring the plaintiff to show cause why a long-delayed civil action should continue, the court applied the conjunctive test requiring an acceptable explanation for delay and absence of non‑compensable prejudice to the defendants.

The action had experienced approximately ten years of unexplained inactivity between the issuance of the claim and the service of the trial record.

The plaintiff relied on evidence of alcoholism, incarceration, family illness, and lack of funds to explain the delay.

The court held these explanations were unsupported or logically insufficient, particularly where the plaintiff had demonstrated an ability to instruct counsel at other times during the same period.

Having failed to establish an acceptable explanation for the delay, the action was dismissed without considering the prejudice branch of the test.

The applicant mortgagee took possession of a residential property under a power of sale.

Prior to possession, an air conditioner subject to a registered Notice of Security Interest by the respondent was removed by an unknown party.

The respondent refused to discharge its notice without payment from the sale proceeds, arguing a priority dispute under the Personal Property Security Act.

The court held that the PPSA establishes rights for fixtures that exist on properties, and since the fixture was removed, no priority dispute existed.

The respondent was ordered to bear the loss and discharge its interest.