Jeffrey A. Kaufman

The appellant purchased furniture, fixtures, and equipment, including a large racking system, from insolvent tenants under a court-approved Liquidation Process Order in bankruptcy proceedings.

The appellant failed to remove the racking from the landlord's distribution centre/warehouse before the lease disclaimer date and multiple deadlines.

The trial judge dismissed the appellant's conversion claim, finding that the racking was deemed abandoned pursuant to the Sale Guidelines incorporated in the Liquidation Process Order, which provided that any fixtures or personal property left in a store after the sale termination date and lease disclaimer would be deemed abandoned.

The Court of Appeal upheld the trial judge's interpretation, holding that the deemed abandonment provision was irrebuttable when read in the context and purpose of the insolvency proceedings, and that the appellant could have sought a variation of the order through the come-back provision but failed to do so.

The appeal and the respondents' cross-appeal on damages were both dismissed.

The trustee in bankruptcy moved for a phase-one determination that profit payments made by Douglas Grozelle to net winners in a fraudulent Ponzi scheme were void as against creditors and recoverable for the estate.

The court found the hallmarks of a Ponzi scheme, held insolvency and fraudulent intent could be inferred globally, and concluded the payments were void under the Fraudulent Conveyances Act and not saved by good-faith or good-consideration defences.

The court approved a two-stage insolvency process: common liability issues resolved summarily now, with individualized quantum determinations in phase two.

The winners’ cross-motion for broad directions attacking the trustee’s process and authority was dismissed.

Following a successful appeal by the appellant, the parties were unable to agree on the costs of the underlying summary judgment motion.

The respondent argued that costs should be reserved to the trial judge and that the amount claimed was excessive.

The Court of Appeal followed its general practice of deciding costs immediately and awarded the appellant its requested partial indemnity costs of $47,660, finding the amount reasonable given the complexity and importance of the motion.

The court declined to interfere with a separate costs order regarding a co-defendant, as it had not been raised on appeal.

This is an appeal from a summary judgment motion.

The appellant, 4342 Queen St. Niagara Holdings Inc. ('Queen'), challenged a summary judgment ordering it to pay Arcamm Electrical Services Ltd. ('Arcamm') nearly $1 million for electrical repair services.

Queen argued that Arcamm's alleged contributory fault for damages to electrical transformers raised genuine issues for trial and that granting summary judgment risked inconsistent findings with a related subrogated claim.

The Court of Appeal allowed the appeal, finding that the motion judge erred by failing to properly address the contributory fault defence and by not recognizing the genuine issues for trial and the risk of inconsistent findings.

The Court affirmed that contributory fault can be raised as a defence in contract actions to apportion damages.

The summary judgment was set aside, and Queen was ordered to bring a motion to consolidate the actions.

In a trial for conversion, the plaintiff claimed the landlord unlawfully disposed of its racking system after a lease disclaimer.

The landlord argued the racking was deemed abandoned under a court order from bankruptcy proceedings or, alternatively, that its disposal was justified due to the plaintiff's trespass.

The court found that the "deemed abandonment" provision in the liquidation order was a valid defense, and even if not, the landlord acted reasonably in disposing of the racking given the plaintiff's trespass and the high costs of preservation.

The plaintiff's claim for conversion was dismissed.

The landlord's counterclaim for lost rental revenue was also dismissed due to insufficient evidence on damages.

Arcamm Electrical Services Ltd. (Arcamm) brought a motion to quash an appeal by 4342 Queen St. Niagara Holdings Inc. (Queen) to the Court of Appeal for Ontario, arguing that the underlying summary judgment, granted in a Construction Act action, should have been appealed to the Divisional Court.

The Court of Appeal dismissed Arcamm's motion, holding that the appeal properly lay with the Court of Appeal because the summary judgment was granted under Rule 20 of the Rules of Civil Procedure based on a contractual claim, not under the Construction Act, and the court's jurisdiction is determined by the substance of the order made.

HPI Advisory Inc., as the court-appointed Liquidator and Marketing and Mortgage Agent (MMA) of Morrison Laurier Mortgage Corporation (the "Company"), moved for an approval and vesting order for the sale of the "Lakeview Centre" property, and an ancillary order to seal a confidential appendix to its Fourth Report.

The Company is a mortgage investment corporation undergoing winding up.

The motion was unopposed.

The court granted the approval and vesting order, finding that the MMA had satisfied the "Soundair Principles" by making sufficient efforts to obtain the best price and conducting a fair sales process.

The court also approved the MMA's activities as described in the Fourth Report.

A sealing order for the confidential appendix was granted, limited in scope and time, to protect commercially sensitive information and ensure the integrity of the sales process, satisfying the factors from Sierra Club as refined in Sherman Estate.

Following the dismissal of a proposed intervener's motion to intervene, the successful party and another intervener sought costs.

The court awarded the successful party elevated costs fixed at $460,000, apportioning liability among the proposed intervener (65%) and the two defendants (17.5% each) due to the defendants' delayed positions which complicated the motion.

The second intervener was awarded $12,500 in costs against the proposed intervener, limited to costs incurred after it first requested them in its factum.

The moving party brought a motion for leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $3,000.

The appellant invested $1,000,000 in a medical centre project, with a guarantee agreement promising repayment of $1,200,000.

When repayment was delayed, the appellant sued and brought a motion for summary judgment.

The motion judge dismissed the motion, finding the guarantee was unambiguously limited to the specific assets listed in an appendix, rather than being an unlimited personal guarantee.

The Court of Appeal upheld this interpretation, finding no palpable and overriding error.

The Court amended the formal order to explicitly state the dismissal of the motion but otherwise dismissed the appeal and refused leave to appeal costs.

The defendant mother brought a motion to stay her son's action against her pending the resolution of related corporate litigation in Toronto.

The son alleged that millions of dollars were transferred to his mother by his father's companies to defraud creditors.

The court dismissed the motion to stay, finding it to be a strategic stalling tactic and noting that the son appeared to have a strong case regarding the unexplained transfers.

The defendant brought a motion to stay or dismiss the plaintiffs' action, arguing that Ontario lacked jurisdiction simpliciter, that a forum selection clause mandated disputes be heard in British Columbia, or alternatively, that British Columbia was the more convenient forum.

The plaintiffs had sued for the right to exercise stock options under a consulting relationship.

The court found that Ontario had jurisdiction simpliciter because the consulting agreement was formed in Ontario.

The court declined to enforce the forum selection clause, finding it was not properly incorporated by reference into the stock option agreement and the plaintiffs were not given adequate notice of it.

Finally, the court held that the defendant failed to establish that British Columbia was clearly the more convenient forum.

The motion was dismissed.

The plaintiff brought a motion for summary judgment on two defaulted loans totaling $1,000,000 made to the corporate defendant and guaranteed by the individual defendant.

The defendants argued that a $300,000 payment made to the plaintiff's sole director was a partial repayment of the loans, while the plaintiff claimed it was a separate personal loan.

The court granted summary judgment but found that the $300,000 payment constituted a pre-payment on the principal of the loans, reducing the judgment amount accordingly.

The defendants' counterclaim was dismissed.

The plaintiff sought partial summary judgment against the defendants for a loan of $1.25 million.

The defendants argued the loan included fees that exceeded the criminal interest rate under s. 347 of the Criminal Code.

The court found that the plaintiff was entitled to partial summary judgment for the undisputed advanced funds of $1,050,000.00, as the defendants failed to provide an actuary certificate to prove the criminal interest rate for the remaining disputed amount.

The court awarded interest at 30% up to the issuance of the claim, and 2% thereafter.

The Court of Appeal for Ontario dismissed an appeal and subsequently addressed costs.

The respondents sought costs for the appeal and for pre-appeal motions that did not proceed.

The appellants argued for no costs due to divided success or novelty, or a reduction.

The court found the respondents wholly successful on appeal, rejecting claims of divided success or novelty.

It awarded $15,000 for the appeal costs and a reduced amount of $5,000 for the motions, acknowledging costs were incurred despite the motions not being argued.

The appellants sought a declaration that the respondents' foreclosure on pledged shares was void for non-compliance with the notice requirements of the Personal Property Security Act (PPSA) and sought an order for the return of the shares.

The application judge dismissed their application, finding the respondents acted within a contractual right of foreclosure outside the PPSA and denied equitable relief.

On appeal, the Court of Appeal found that while s. 17.1(2) of the PPSA, which allows secured parties with control over investment property to deal with collateral as per the security agreement, does not permit foreclosure without notice, the respondents had, in fact, provided adequate notice under Part V of the PPSA.

The appeal was dismissed.

The plaintiffs sought summary judgment for liquidated damages on four short-term lending agreements.

The defendants conceded liability for two corporate entities (Atlas LP and Atlas Ltd.).

The remaining issues were whether Peter Grigoras was liable as a guarantor for a loan to Bo Xiang and a promissory note to Rui Xu.

The court granted summary judgment against the corporate entities and found Mr. Grigoras liable as guarantor for the Xiang loan, ruling that an emailed demand for payment was sufficient despite a clause mentioning registered mail.

However, the court dismissed the claim against Mr. Grigoras for the Xu promissory note, finding that the note's mere definition of him as "Guarantor" was insufficient to establish a binding guarantee without essential terms and conditions.

The plaintiff brought a motion for summary judgment against the defendant for $1,200,000 plus interest, based on a guarantee agreement.

The defendant argued the guarantee was limited to specific collateral, contingent on construction completion, that no proper demand was made, and that the action was an abuse of process.

The court found the guarantee was indeed limited to the collateral, but was not contingent on construction, a proper demand had been made, and the action was not an abuse of process.

The Plaintiff sought to proceed with an unopposed summary judgment motion due to the Defendant's alleged failure to deliver a responding record by a court-ordered deadline.

The Defendant claimed non-receipt of the motion record and believed the motion was adjourned due to COVID-19 court notices.

The court found a miscommunication regarding document delivery but noted that the parties should have continued preparing the motion.

Balancing fairness to both parties, the court varied the existing timetable to allow the Defendant an opportunity to respond, prioritizing adjudication on the merits.

The Plaintiff's request for costs thrown away due to the delay was denied, acknowledging the Defendant's pandemic-related complications.

However, the Defendant was ordered to pay outstanding costs from a previous Master's Order.

This decision addresses the costs of a dismissed interlocutory injunction motion brought by Phoenix Holdings Limited against Healthcare Holdings Inc. and KMH Cardiology Centres Incorporated.

The court found the injunction motion lacked merit and was brought with unacceptable late service of materials, causing the applicants unnecessary costs.

The court ordered Phoenix Holdings Limited to pay the applicants' costs on a partial indemnity basis, fixed at $20,000, inclusive of disbursements and HST.