James S. Quigley

At a case conference, the plaintiffs sought to adjourn the defendants' upcoming summary judgment motion in a solicitor's negligence action.

The plaintiffs argued they needed to obtain expert evidence regarding the standard of care, which they could only do after cross-examining the defendant lawyer due to a lack of documentary production.

The court agreed that the summary judgment motion was premature and adjourned it, directing the plaintiffs to bring a motion for leave to deliver expert evidence.

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 franchisor brought a motion for summary judgment against the corporate franchisee and its personal guarantor for unpaid royalties and advertising fees.

The corporate defendant had been voluntarily dissolved and the individual defendant had transferred his shares without the plaintiff's consent.

The defendants did not appear at the motion.

The court validated service on the corporate defendant, found no genuine issue for trial regarding the breach of the franchise agreement and guarantee, and granted summary judgment for the unpaid fees plus interest at the contractual rate of 24%.

The plaintiff franchisor brought a motion for summary judgment for unpaid royalties and advertising expenses incurred after the franchise agreement expired.

The defendants argued the claims were statute-barred and raised credibility issues.

The court found that the terms of the expired agreement continued to govern the parties' relationship as they had operated under it for 19 months post-expiry.

However, the court held that claims arising more than two years before the Statement of Claim was issued were statute-barred.

Judgment was granted for amounts billed within the limitation period, with interest.

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.

The moving parties brought a motion for leave to appeal the order of Gilmore J. dated September 24, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $10,000.

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.

The applicant, a former tenant, sought to enforce a lease renewal option and claim damages for breach of contract against the landlord and sub-tenant.

The court found that both the landlord and sub-tenant breached their duties of good faith and contractual obligations to the applicant regarding the renewal.

However, no monetary damages were awarded to the applicant because the fair market rent for the renewed term would have resulted in a break-even scenario.

The application for specific enforcement was denied, and the applicant was ordered to return a $10,000 deposit to the sub-tenant.

No costs were awarded due to the mixed outcome.

The National Bank of Canada appealed an order dismissing its motion to set aside an ex parte order that paid surplus tax sale proceeds to the Family Responsibility Office (FRO).

The Bank, as a first and second mortgagee, had priority at law over the FRO, an execution creditor.

The Divisional Court allowed the appeal, finding that the motion judge erred in interpreting s. 380 of the Municipal Act, 2001.

The Court held that the Bank's failure to apply for the funds did not extinguish its legal priority, and the FRO was not entitled to the proceeds.

The FRO was ordered to repay the funds to the Bank.

The applicant sought a declaration that a bankrupt's notional gift of 50% equity in a matrimonial home to his spouse was a transfer at undervalue and void under s. 96(1)(b)(i) of the Bankruptcy and Insolvency Act.

The court found that even if the transfer was at undervalue, it would exercise its equitable discretion not to declare it void.

The court considered factors such as the spouses' good faith, the lack of intention to defeat creditors, the spouse's non-monetary contributions to the family, and her need for the funds to support herself and her children.

The appellant appealed a Master's order dismissing its motion for a litigation timeline, including documentary disclosure, examinations for discovery, and mandatory mediation.

The Master had found the motion premature because pleadings in the counterclaim had not yet closed, the respondent was not in breach of any court order or rule deadline, and no proper discovery plan had been presented.

The Superior Court upheld the Master's decision, finding no palpable and overriding error.

The court affirmed that for a comprehensive discovery plan, all pleadings (main action and counterclaim) must be closed to define the issues, and that a "limited discovery plan" not complying with Rule 29.1.03(3) was insufficient.

The applicants sought an order under s. 56 of the Personal Property Security Act to discharge a financing statement registered by the respondents asserting a security interest in the applicants’ personal property.

The registration was based on purported unilateral “fee schedules” and invoices claiming millions of dollars for alleged intimidation and unauthorized use of a name.

The court found no security agreement existed and concluded the PPSA registration was filed without colour of right as part of a pseudolegal “OPCA” style scheme.

The court ordered the discharge of the registration and awarded statutory damages of $500 under s. 56(4).

Substantial indemnity costs were ordered and the directing mind of the corporate respondent was held jointly liable with the corporation.