James S. Quigley

The plaintiff bank brought a contempt penalty motion against the defendant, who had been found in contempt for failing to attend a court-ordered examination in aid of execution.

Despite multiple orders compelling attendance and document production, the defendant repeatedly failed to comply, including failing to attend the penalty hearing itself.

The court ordered the defendant to pay costs on a full indemnity basis in the amount of $15,587.50 for the penalty hearing, a failed examination where the defendant claimed not to speak English, and a subsequent examination the defendant failed to attend.

The plaintiff, Marper Holdings Limited, sought summary judgment to enforce a mortgage debt against Foxpark Development Corporation, Carl Strand, and John Strand.

The court found that the defendants had defaulted on a $2 million loan secured by a mortgage, and that the individual defendants were liable as guarantors.

The court also dismissed the defendants' counterclaim, finding it disclosed no cause of action.

Judgment was granted for the full amount claimed, plus interest and costs, and Marper was granted possession of the property.

The moving parties (respondents in the bankruptcy applications) sought to stay the bankruptcy applications brought by the responding party bank.

The bank had demanded repayment of personal lines of credit that were used to fund the moving parties' corporate entities, which were under CCAA protection.

The court granted the stay, finding that the bank was acting as a single creditor without special circumstances justifying a bankruptcy order.

Furthermore, the court held that the claims were captured by the broad stay of proceedings issued in the CCAA proceedings.

The plaintiff landlord sued the defendant tenant and its guarantor for breach of a commercial lease.

The tenant failed to take possession and begin fixturing the premises, arguing the landlord had not completed its work to satisfaction.

The court interpreted the lease, finding that the tenant was obliged to take possession when the landlord's work was "sufficiently complete to permit fixturing," not fully complete.

The tenant's failure to take possession constituted repudiation of the lease.

The court awarded the landlord damages, holding both the tenant and the guarantor liable.

The Heidari Creditors, as assignees of the trustee in bankruptcy, sought an order compelling a representative of Sherwood Custom Homes Inc. to be examined under subsection 163(1) of the Bankruptcy and Insolvency Act.

Their theory was that the bankrupt's former spouse's salary at Sherwood might represent funds earned by the bankrupt.

The court dismissed the motion, finding that the creditors failed to establish that Sherwood reasonably had knowledge of the bankrupt's affairs or property, and that the evidence did not reasonably support the theory that the spouse's income represented the bankrupt's earnings.

The court-appointed receiver brought a motion to approve the sale of a jointly owned property and for ancillary relief, including approval of fees and an interim distribution of proceeds.

The respondent opposed the sale, challenging the appraisals, the rejection of his own bid, and the receiver's fees.

Applying the Soundair test, the court found that the receiver made sufficient efforts to obtain the best price, considered the interests of all parties, and conducted a fair process with integrity.

The court approved the sale, the receiver's fees, and an interim distribution of the proceeds to the applicant to satisfy outstanding obligations under a prior divorce agreement.

The Applicant sought a declaration that the Respondents' right to purchase its shares, pursuant to an agreement, was terminated and of no further force and effect.

The Respondents argued the right had not expired and the agreement remained in force.

The court found the agreement enforceable, despite the Applicant's arguments regarding privity of contract and uncertainty.

The court interpreted the agreement to mean that the right to purchase shares was not terminated by default, but rather incurred a penalty.

The court also found that the parties' conduct caused the agreement to remain in force, and the Applicant breached its duty of good faith by not disclosing its position that the buyback right had expired while continuing to accept payments.

The application was dismissed.

The moving defendant sought to set aside a noting in default and default judgment obtained against him by the plaintiff bank in an action to enforce a corporate guarantee.

The plaintiff had inadvertently noted the defendant in default before the 20-day deadline to defend had expired.

The court admitted a portion of a settlement-privileged email to assess when the defendant learned of the claim.

Applying the five-factor test, the court found the defendant moved promptly, had a plausible excuse for the default, and raised an arguable misrepresentation defence.

The court set aside the default judgment, concluding it was in the interests of justice to allow the defendant to defend the claim on its merits.

The plaintiff, Coffee Time (2015) Corporation, sought costs on a partial indemnity scale after being granted partial summary judgment against the defendants for franchise fees, interest, and rent arrears.

The court, however, exercised its discretion under Rule 57.01 and 57.05 of the Rules of Civil Procedure to deny the plaintiff any costs.

This decision was based on the plaintiff's conduct, specifically their failure to properly calculate rent arrears and account for a rent deposit, which unnecessarily lengthened the proceeding.

Furthermore, the total amount recovered by the plaintiff fell within the monetary jurisdiction of the Small Claims Court, leading the judge to conclude the action should have been brought there.

The plaintiffs, Robert Salna and North Lake Estates Inc., brought a partial summary judgment motion seeking a declaration that a partnership existed with the defendants, 741980 Ontario Limited and Enzo Risi, for building houses.

The defendants brought a cross-motion to dismiss the claim as statute-barred.

The court found that a partnership existed based on a written agreement, admissions in pleadings and affidavits, and the parties' conduct.

The court also determined that the plaintiffs' claim was not statute-barred, applying sections 5(1)(a)(iv) and 11 of the Limitations Act, 2002, due to ongoing efforts to resolve the accounting dispute with the assistance of a third-party accountant.

The remaining issues regarding the partnership terms, misappropriations, and final accounting were reserved for further summary judgment proceedings.

The plaintiff, Coffee Time (2015) Corporation, sought summary judgment against the defendants, 1685247 Ontario Limited and Khursheed A. Choudhry, for unpaid franchise fees and rent arrears under a franchise agreement and sublease.

The defendants raised several defenses, including limitation periods, the effectiveness of the assignment of the agreements to the plaintiff, disputes over the calculation of fees and rent, a claim for accelerated rent, and credit for abandoned property.

The court granted partial summary judgment, finding the assignment effective as an equitable assignment, adjusting the calculation of rent arrears based on a reduced minimum rent, denying the claim for accelerated rent as the tenancy was month-to-month, and denying credit for abandoned property due to insufficient evidence.

The plaintiff was awarded specific amounts for franchise fees and rent arrears, with interest on franchise fees.

This endorsement addresses a partial summary judgment motion where the court, following the Court of Appeal's decision in Co-Operators General Insurance et al., requested submissions on the appropriateness of partial summary judgment.

Due to conflicting affidavits regarding an alleged agreement to engage an accountant for partnership profit accounting and a promise to pay, and issues of access to partnership documents and potential estoppel related to the limitation period, the court found significant credibility issues.

Consequently, a mini-trial was ordered to resolve these factual disputes, including the applicability of section 11 of the Limitations Act.

Lynne Foulidis appealed a Superior Court order granting a charging order against her Toronto residence to Jodi L. Feldman Professional Corporation for $664,323.38 in legal fees.

The charging order was granted to secure outstanding legal fees from family litigation.

Lynne argued the property was no longer in existence for the purpose of the charging order due to a prior transfer to George Foulidis, that the lawyer's contribution was not substantial, and that there was no risk of non-payment.

Jodi L. Feldman Professional Corporation cross-appealed on costs.

The Court of Appeal dismissed Lynne's appeal, upholding the charging order, finding that the property was in existence (subject to a triable issue of fraudulent conveyance), the lawyer's contribution was instrumental, and there was a clear refusal to pay fees.

The cross-appeal on costs was also dismissed, but costs of the appeal were awarded to Jodi L. Feldman Professional Corporation.

This was a motion for default judgment by the Bank of Montreal against a corporate borrower and its principal, who acted as a guarantor, for outstanding debts under three credit facilities.

The court confirmed the amounts owed by the borrower and addressed the guarantor's limited liability under two personal guarantees.

The judge clarified that enforcement costs of the underlying loans were subject to the guarantee caps, while costs of enforcing the guarantees themselves were not.

The court assessed partial indemnity costs for the guarantor's claim and full indemnity costs for the borrower's claim, adjusting the Bank's requested costs due to overreach in its motion.

The appellant, Bijan Naghshbandi, appealed judgments from two actions where he was ordered to repay significant debts to Shahram Heidari and Tarra Engineering Inc. The appeal raised five grounds: that the trial judge introduced a new theory of liability (joint investment), failed to provide adequate reasons for liability, did not apply a claimed credit, misstated the test for an oppression action, and erred in relying on unreliable witness testimony regarding a share transfer.

The Court of Appeal dismissed all grounds, upholding the trial judge's findings, particularly on credibility, and confirming the debts owed.

The applicants sought to discharge a $160,000 mortgage held by the respondent, the applicant's stepfather, on their property.

The respondent claimed the mortgage secured an interest-free loan provided to assist the applicant in purchasing a previous property.

The applicants argued the funds were a gift and the mortgage was registered solely to protect the gift in the event of a marriage breakdown.

The court found no contemporaneous documentation of a loan, noted the respondent had previously sworn he was owed no money, and concluded the funds advanced were a gift.

The presumption of resulting trust was rebutted, the mortgage was ordered discharged, and the Notice of Sale was declared invalid.

The plaintiff, Intercap Equity Inc., brought a motion for summary judgment to enforce a debt and a personal guarantee against the principals of the corporate debtor, Capsule Media Inc. The defendants argued that the guarantee was discharged by a novation clause in a subsequent loan agreement and that their subjective understanding of the contract should be considered.

The court found the guarantee to be a continuing guarantee, covering liabilities connected to the original loan despite subsequent amendments and restatements.

The defendants' subjective interpretations were deemed inadmissible and incredible.

The motion for summary judgment was granted, enforcing the guarantee against all defendants jointly and severally.

The defendants brought a motion seeking leave to amend their statement of defence to include a counterclaim and to obtain a Certificate of Pending Litigation (CPL) against a property.

The plaintiff opposed both requests, arguing the counterclaim lacked merit and the CPL was unwarranted.

The court granted leave to amend the pleading, finding no uncompensable prejudice to the plaintiff.

However, the court dismissed the request for a CPL, concluding that the balance of convenience did not favor its issuance, particularly given that prior cost awards against the plaintiff had been paid and other procedural tools were available to the defendants.

This is a costs endorsement following an appeal from a Superior Court judgment.

The Court of Appeal invited the parties to make written submissions on costs after issuing reasons on May 23, 2019.

The parties were unable to reach agreement and submitted written arguments.

The Court awarded costs to the appellant against one of the respondents.

The appellant leased commercial premises from the respondent with a right to renew for five years.

The appellant sublet the premises to a third party without reserving the last day of the head lease term.

When the appellant attempted to exercise its renewal option, the respondent claimed the appellant had forfeited its rights through an assignment.

The application judge failed to resolve this central issue and instead found a breach of contract with no damages.

The Court of Appeal allowed the appeal, holding that section 3 of the Commercial Tenancies Act permits a sublease even without reserving the last day of the head lease term, provided there is sufficient evidence that the parties did not intend an assignment.

The sublease language clearly demonstrated the parties' intent to preserve the appellant's renewal rights.