J. Greg Murdoch

The appellant mortgagee appealed a judgment of the Superior Court of Justice regarding the interpretation and effect of a forbearance agreement between the mortgagee and mortgagor.

The application judge found that the forbearance agreement gave the mortgagee complete control over the mortgaged property and its business operations, including control over sale, capital improvements, tenant relations, and cash flow.

The Court of Appeal upheld the application judge's findings, holding that the forbearance agreement, as interpreted and applied by the parties, resulted in the mortgagee obtaining total control over the property.

The court emphasized that its findings were limited to the specific facts of the case and that not every forbearance agreement places a mortgagee in control.

The moving party (respondent) sought summary judgment dismissing the responding party's (applicant's) family law claims for a declaration of a spousal relationship and constructive trust over a residential property.

The moving party had previously obtained an eviction order from the Landlord and Tenant Board, which found that the parties were in a landlord-tenant relationship, not a spousal one.

The responding party appealed the Board's decision to the Divisional Court but failed to perfect the appeal, resulting in its dismissal.

The Superior Court of Justice granted summary judgment, finding that the family law claims were barred by the doctrines of issue estoppel, collateral attack, and abuse of process, as the responding party was attempting to relitigate issues already decided by the Board.

Following a judgment in favour of the landlord regarding the termination of a commercial lease upon a request to assign, the landlord sought costs of $15,098.45 on a substantial indemnity basis or $9,928.16 on a partial indemnity basis.

The tenant argued that the case involved a novel issue with no prior Ontario case law and suggested costs be limited to $5,000.

The court found that while the landlord was successful and entitled to costs, the tenant had a good argument on a novel issue.

The court fixed costs at $5,000, noting the tenant's failure to file its own bill of costs diminished its argument on reasonable expectations.

The applicant brought an application to enforce a settlement agreement for the transfer of shares in a company holding Tim Hortons franchise licenses.

The respondent estate trustee refused to sign the closing documents, arguing her former solicitor lacked authority to agree to the $10,000 purchase price and that essential terms were missing.

The court found that the solicitor had apparent authority to negotiate the agreement and that a binding contract was formed.

The court declined to set aside the agreement, noting the $10,000 price was commercially reasonable given the franchisor's valuation of the business and outstanding debts.

The application was granted and the respondent was ordered to execute the transfer.

A ruling on costs following a motion concerning severance of civil claims.

The responding party successfully defended the motion and sought costs on a partial indemnity basis.

The court considered the principles governing cost awards, including reasonableness and access to justice, and applied guidance from appellate authorities regarding the summary assessment of counsel fees.

The court rejected arguments that the successful party improperly used two lawyers or duplicated work.

Costs were fixed and ordered payable by certain defendants.

The moving defendants sought an order requiring that the plaintiff’s claims against them be asserted in a separate proceeding pursuant to Rules 5.02 and 5.05 of the Rules of Civil Procedure.

The action alleged two related kickback and fraud schemes involving a company executive who allegedly conspired with different subcontractors.

The moving parties argued that the claims concerning the two schemes should be severed.

The court held that the claims were properly joined because they involved a common participant, similar modus operandi, and overlapping factual and legal issues.

Severance would create unnecessary complexity and could require similar fact evidence to be litigated in separate proceedings.

A contractor sued homeowners for unpaid renovation invoices and sought to enforce a construction lien.

The court held the lien was not preserved within the statutory time under the Construction Lien Act and ordered it discharged.

However, the court found the renovation agreement was a time‑and‑materials contract rather than a fixed‑price contract as alleged by the homeowners, relying on the written contract and the parties’ subsequent conduct.

Most alleged deficiencies and overbilling claims were rejected, with only minor credits allowed.

Judgment was granted against one homeowner for the outstanding balance with prejudgment interest, while the claim against the other homeowner and the lien claim were dismissed.

The moving party sought reconsideration of a costs order arising from a garnishment motion related to enforcement of a judgment exceeding $400,000.

The court reviewed its earlier endorsement under Rule 59.06(1) of the Rules of Civil Procedure, which allows amendment of an order containing an accidental slip or omission.

The court found that it had inadvertently failed to address relief sought in an amended notice of motion requiring a numbered corporation and an individual to disgorge funds received from a third party for the judgment debtor’s services.

Concluding the omission resulted from an accidental oversight, the court amended its prior endorsement to require payment of the amounts received, with interest, to the sheriff pursuant to the garnishment.

The motion to set aside the earlier costs order was dismissed.

The plaintiff sued the defendants for negligent misrepresentation after extending credit to a company that subsequently went bankrupt.

The defendants brought motions for summary judgment to dismiss the action.

The credit union argued it was protected by a disclaimer on the credit inquiry form, while the individual defendants argued they owed no duty and made no misrepresentations.

The court dismissed the motions, finding that the plaintiff had established a prima facie case of negligent misrepresentation and that a trial was required to resolve credibility issues and determine the effect of the disclaimer.

Following dismissal of a wrongful dismissal action after a four-day trial, the court determined the costs consequences where the defendant had abandoned a counterclaim at the commencement of trial.

The plaintiff sought partial indemnity costs for preparation relating to the counterclaim, which had required trial preparation before its discontinuance.

Applying Rules 23.05 and 23.07 of the Rules of Civil Procedure and the discretion under s.131 of the Courts of Justice Act, the court held that the plaintiff was entitled to partial indemnity costs attributable to the counterclaim up to the point of discontinuance.

The court apportioned 25% of pre‑trial preparation to the counterclaim and set off those costs against the defendant’s entitlement following dismissal of the main action.

After adjustments and set‑off, the plaintiff was ordered to pay net costs to the defendant.

Following a prior ruling that the defendants incorporated a company to defeat enforcement of a judgment obtained by the plaintiff, the court addressed costs of the motion.

The evidence established that the defendants collaborated to divert income through a corporation to prevent garnishment and frustrate the plaintiff’s efforts to enforce her judgment arising from fraudulent misrepresentation.

The court found the defendants’ conduct akin to fraud and held that substantial indemnity costs were warranted.

In the absence of responding submissions from the defendants, the court reviewed the claimed fees and disbursements and fixed costs.

Substantial indemnity costs were awarded jointly against both defendants.

A judgment creditor brought a motion alleging that the debtor incorporated a company and directed his earnings to it in order to defeat enforcement of a judgment exceeding $415,000.

The court examined the debtor’s arrangement under the Assignments and Preferences Act and Rule 60.08(16) of the Rules of Civil Procedure.

Evidence showed that the corporation was created after judgment and that the debtor’s spouse became the sole shareholder while the debtor continued performing the same services, with the admitted purpose of prioritizing repayment to the spouse over the creditor.

The court held that the arrangement constituted an improper preference intended to hinder the creditor.

The garnishee was ordered to honour the notice of garnishment by paying amounts owing to the debtor to the sheriff, though the court declined to find the debtor in contempt.