Jeff Rosekat

The court approved a proposed settlement and certified the action for settlement purposes under the Class Proceedings Act, 1992.

The class consists of approximately 100 investors in a failed real estate limited partnership project.

The settlement restores the class members’ proportionate interest in the property, now with greater development density and less debt, and is considered generous.

The court found the settlement fair, reasonable, and in the best interests of the class, and approved class counsel’s fees.

The action will continue only as between the defendants for unresolved crossclaims.

This addendum to the judgment in McKenzie-Barnswell v. Xpert Credit Control Solutions Inc., 2025 ONCA 253, clarifies issues regarding post-judgment interest, costs, and the status of the mortgage at issue.

The Court of Appeal for Ontario confirms that post-judgment interest is to be calculated at the statutory rate under the Courts of Justice Act, not the rate in the mortgage, due to findings of unconscionability and wrongful conduct.

The court upholds the trial judge’s substantial indemnity costs award, orders a set-off of costs against the respondent’s indebtedness, and confirms that the unconscionable mortgage shall not be re-registered.

Monies paid into court as security for costs are to be paid out to the appellants’ lawyers in trust.

The Court of Appeal for Ontario considered an appeal from a trial decision setting aside a mortgage and construction contract on the basis of fraudulent misrepresentation and unconscionability.

The appellants, including Xpert Credit Control Solutions Inc. and its director Sam Joshi, challenged the trial judge’s findings and the scope of the remedy.

The Court upheld the findings of liability but found the trial judge erred in setting aside the entire mortgage and awarding speculative damages.

The Court reduced the enforceable mortgage amount to $319,000, reflecting only the legitimate debt, and upheld $153,000 in damages for negligent construction, setting aside the requirement to pay $250,000 into trust.

The Applicants sought the appointment of a receiver over several respondent companies, including those jointly owned and those solely controlled by one of the individual respondents, due to alleged misappropriation of funds, mortgage defaults, and corporate oppression.

The court dismissed the application, finding that the statutory bases for appointing a receiver (Courts of Justice Act, Bankruptcy and Insolvency Act, Business Corporations Act) were not met.

The court determined there was no underlying action for interlocutory relief, no irreparable harm shown given the sufficient value of the secured property, and the request for relief against solely-owned companies was brought too late.

The Moving Parties brought a jurisdiction motion seeking to dismiss or stay Senvion's Ontario action and motion for lack of jurisdiction or on the basis of forum non conveniens, arguing that Quebec was the more appropriate forum.

Senvion's proceedings concerned an alleged breach of a Companies’ Creditors Arrangement Act (CCAA) stay order issued by the Ontario court, specifically regarding the draw down of a letter of credit.

The court dismissed the Moving Parties' motion, holding that the Ontario court, as the issuer of the CCAA recognition orders and stay, was the appropriate forum to determine whether its order had been breached, irrespective of contractual choice of law or forum clauses.

The court explicitly stated it was not making a determination on the merits of the stay violation.

The defendants, Stantec Consulting Ltd., Gordon A. Johnston, and Paul J.D. Alpern, brought a motion for summary judgment to dismiss the plaintiff G Group's claim.

The motion sought dismissal on the grounds that the claim was barred by the Limitations Act and that no genuine issue existed against the individual defendants.

The court granted summary judgment in favour of the individual defendants, finding no viable claim against them.

However, the court dismissed the motion for summary judgment against Stantec Consulting Ltd., determining that the limitations issue was complex, involved conflicting evidence, and raised genuine issues requiring a trial to resolve, particularly regarding the nature of the agreement and the discoverability of the claim.

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.