Josh Suttner

The applicant lender sought appointment of a court-appointed receiver over three parcels of vacant land owned by the guarantor to conduct a sale in satisfaction of a $10 million guarantee.

The respondent guarantor and first mortgagee resisted the receivership.

The court upheld the validity of the applicant's second mortgages despite the absence of the first mortgagee's consent, finding the consent requirement was not a true condition precedent and the authorization and direction was unconditional.

However, the court declined to appoint a receiver, finding it unnecessary given the limited nature of the assets and the absence of any business to operate or preserve.

The guarantor was permitted 90 days to effect a private sale, with the applicant retaining the right to return for further relief.

The plaintiff, Ari Lesser, brought a motion under Rule 30.10 of the Rules of Civil Procedure seeking an order requiring third party Cogeco Connexion Inc. to disclose basic subscriber information associated with a specific IP address.

The court distinguished between Norwich orders and Rule 30.10 orders, finding that as an Associate Judge, it could not grant equitable relief but could grant the requested order under Rule 30.10.

The court found the information sought was relevant and necessary, and that the plaintiff had established a prima facie case against the unknown defendants.

The motion was granted.

The court granted default judgment in favour of Aird & Berlis LLP against Spotlight Development Inc. and Shahrzad Larjani (a.k.a.

Sherry Larjani) for unpaid legal fees.

The decision addresses the consequences of being noted in default, the test for default judgment, and the assessment of damages, costs, and interest.

The court found the fees reasonable and awarded partial indemnity costs and interest at the statutory rate.

The plaintiff, Ari Lesser, brought a motion for a Norwich order compelling Change.org to produce subscriber information identifying the creator of a petition that allegedly defamed him.

The court reviewed the legal test for granting a Norwich order, including the necessity of the information, the relationship between the applicant and the third party, and the interests of justice.

The court found that all criteria were met and granted the order, allowing the plaintiff to obtain the requested information from Change.org.

This decision resolves two related oppression applications concerning the ownership and management of a closely held family trucking and logistics business, the World Wide Group of Companies.

The court finds that, despite the corporate records, there was an oral agreement among the four principal family members (two brothers and two brothers-in-law) that they would be equal beneficial owners of the main operating company and related entities.

The court orders rectification of the share register and grants a buy-out remedy to effect a final separation of interests, given the irreparable breakdown in relationships and mutual trust.

This decision resolves two related oppression applications concerning the ownership and management of a closely held family trucking and logistics business, the World Wide Group of Companies.

The court finds that, despite the corporate records, there was an oral agreement among the four principal family members (two brothers and two brothers-in-law) that they would be equal beneficial owners of the main operating company and related entities.

The court orders rectification of the share register and grants a buy-out remedy to effect a final separation of interests, given the irreparable breakdown in relationships and mutual trust.

The appellants, purchasers of pre-construction homes, appealed a motion judge's order striking their claims against three directors of Vandyk, a company that acquired the failed development.

The appellants argued for a viable claim based on unlawful act conspiracy and that the motion judge erred in denying leave to amend.

The Court of Appeal found no error in the motion judge's analysis, affirming that the claims did not allege conduct by the directors outside their corporate roles and that it was plain and obvious no tenable cause of action was pleaded.

The appeal was dismissed, and costs were awarded to the appearing respondents.

Winning Brands Corporation (WBC), a Delaware corporation, brought a motion to strike or permanently stay a bankruptcy application filed against it by creditor Charles Perlman.

WBC argued it lacked a sufficient nexus to Canada, claiming it operated exclusively in the U.S. and had no business or property in Canada.

The court dismissed WBC's motion, finding overwhelming evidence that WBC carried on business and resided in Ontario, including public filings listing an Ontario principal office, a Toronto facility, and its CEO residing and controlling the company from Ontario.

The court also noted that WBC had previously attorned to Ontario jurisdiction in the underlying loan agreements and judgment.

The plaintiff, Royal Bank of Canada, brought a motion for summary judgment against the corporate defendant, 1737202 Ontario Inc., and personal defendants, Khalid and Qaiser, due to their default on a Credit Agreement, Personal Guarantee, and subsequent Forebearance Agreement.

Despite filing a Statement of Defence and agreeing to a timetable, the defendants failed to file responding materials or appear at the motion hearing.

The court found no genuine issue requiring a trial, as the defendants relied solely on pleadings without adducing evidence.

Summary judgment was granted in favour of RBC for the outstanding amount, accrued interest, and full indemnity costs.

The plaintiffs, purchasers of pre-construction homes, sued the developer, its directors, its lender, and the subsequent purchaser of the development after their agreements of purchase and sale were terminated and their deposits retained.

Several groups of defendants brought motions to strike the statements of claim under Rule 21.01(1)(b) and Rule 25.11.

The court found the pleadings to be deficient, confusing, and lacking material facts.

Many claims, including conspiracy, interference with economic relations, and inducing breach of contract, were struck with leave to amend.

Claims for unjust enrichment and claims against the individual directors of the subsequent purchaser were struck without leave to amend.

Claims against the former directors of the developer under the Assignments and Preferences Act and for oppression were allowed to proceed.

The applicants brought a motion for an interim and/or interlocutory order to restrain the respondents from exercising powers prejudicial to their interests in a family trucking business and to nullify recent corporate governance actions.

The court granted a partial injunction, restraining the respondents from acting prejudicially or outside the corporation's best interests, finding a serious question to be tried, irreparable harm, and the balance of convenience favoring this restraint.

However, the court denied the request to nullify the corporate governance actions (which removed the applicants as directors and officers), as this constituted a mandatory injunction requiring a strong prima facie case, which the applicants failed to meet regarding their shareholder status.

Sukhdev Dhaliwal remained the sole shareholder, director, and officer, subject to the imposed restraints.

The defendants brought a motion under Rule 21.01(1)(b) to strike the plaintiff's statement of claim for disclosing no reasonable cause of action.

The plaintiff sought damages for breach of contract and misrepresentation after a farmhouse on a property purchased from the defendants was destroyed by fire before closing.

The court found no contractual obligation for the defendants to insure the property, rebuild the farmhouse, or abate the purchase price, relying on the Supreme Court of Canada's decision in Wile v. Cook.

The misrepresentation claim lacked sufficient particulars as required by Rule 25.06(8).

The statement of claim was struck out, but with leave to amend.

Alfredo Paladino, a defendant and plaintiff by counterclaim, brought a motion seeking leave to issue a certificate of pending litigation (CPL) on a property, a stay of a Landlord and Tenant Board (LTB) application, and an order preventing Charles Paladino from interfering with his use of the property.

The court granted leave for the CPL, finding a triable issue regarding Alfredo's interest in the land and that the property was unique.

The court dismissed the request to stay the LTB application, deferring to the LTB's jurisdiction.

The court granted the injunction preventing Charles Paladino from interfering with Alfredo's use of the property, finding a serious issue to be tried, irreparable harm, and that the balance of convenience favored the injunction.

Costs were fixed at $48,000 in favour of Alfredo Paladino due to substantial success.

This costs endorsement followed a successful motion by the defendants to strike pleadings against the individually named directors of the defendant condominium corporation.

The defendants sought costs on a substantial or partial indemnity basis, while the plaintiff argued for a lower partial indemnity amount.

The court considered factors under Rule 57.01 and the principle of proportionality, finding the plaintiff's decision to name the directors personally ill-advised and unnecessary, but not egregious.

The court awarded partial indemnity costs to the defendants.

The plaintiff, Ameresco Canada Inc., moved for default judgment against the defendant, Bernard Christopher, who was noted in default for failing to file a defence.

The defendant had defrauded the plaintiff of $911,528.44 through cyber fraud, by intercepting email communications and directing the plaintiff to wire payments to his personal account.

The plaintiff recovered $764,613.45.

The court granted default judgment, including pre-judgment and post-judgment interest.

The court awarded $90,000 in punitive damages, emphasizing the severity of cyber fraud and the need for disincentive.

Costs were fixed at $6,000, including disbursements and HST, noting that costs for prior procedural orders were not awarded.

The defendants, Facebook, Inc., Facebook Canada, Ltd., and Meta Platforms, Inc., brought a motion to strike the plaintiff's 336-paragraph, 46-page Statement of Claim.

The defendants argued the claim was frivolous, vexatious, an abuse of process, and disclosed no reasonable cause of action, citing the plaintiff's history of similar lawsuits against tech companies.

The plaintiff, self-represented, denied a "litigation scheme" and argued his claims were valid.

The court, applying Rules 21.01 and 25.11, found the Statement of Claim to be overly broad, unspecific, and failing to plead material facts for various claims (e.g., facial recognition, data mining, discrimination, security breaches, private messages, data selling, scams, location data, copyright, gambling, privacy, illicit databases, trespass, conversion, competition law, consumer protection, unjust enrichment, fraudulent concealment).

The court struck the entire Statement of Claim but granted the plaintiff leave to deliver a Fresh as Amended Statement of Claim, emphasizing the need for conciseness and material facts.

The court declined to admit evidence of other claims to prove an abuse of process, stating it would turn the motion into an evidentiary disposition.

The defendants brought a motion to strike portions of the plaintiff's fresh as amended claim, specifically allegations against individual board members, for inducing breach of contract, unjust enrichment, breach of trust, knowing receipt of trust funds, and knowing assistance of breach of trust.

The court found no discernible conduct by the directors separate from their corporate roles to ground personal liability.

The allegations lacked sufficient particulars and offended the indirect benefit prohibition for unjust enrichment.

The court granted the motion, striking all claims against the individual directors without leave to amend, citing the lack of a tenable cause of action and public policy considerations against litigation by intimidation.

The Plaintiff, Satori Interréseautage Inc., brought a motion under Rule 44.01 of the Rules of Civil Procedure for the interim recovery of personal property.

The case involved funds misappropriated through a cyber hacking scheme, where the Plaintiff's payment, intended for a vendor, was fraudulently redirected to a CIBC account controlled by 14140214 Canada Inc. and Hamed Choubry-Ousseni.

Despite a Mareva injunction already being in place, CIBC required a specific court order to return the remaining funds.

The court found that the criteria under Rule 44.01 were satisfied, as the property was identifiable, the Plaintiff was lawfully entitled to it, and it had been unlawfully taken.

The motion was granted, ordering the return of funds and an accounting from the respondents, along with costs.

The plaintiff bank brought a motion for summary judgment against a corporate borrower and its guarantors after the borrower defaulted on a loan and was placed into receivership.

The defendants argued they were induced to sign the guarantees by misrepresentations from their lawyer, who also acted for the bank, regarding the priority of the bank's security interest.

Using enhanced fact-finding powers to hear oral evidence, the court found the defendants' evidence lacked credibility and that no misrepresentations were made.

The court held the guarantees were absolute and unconditional, and granted summary judgment to the plaintiff for the outstanding loan amount.

The plaintiffs brought a motion for summary judgment to enforce a settlement agreement arising from a defaulted loan and promissory note.

The defendants argued the underlying debt was statute-barred, the interest rate was criminal, and the individual defendant did not sign as a guarantor.

The court found the promissory note was a demand obligation, the limitation period was extended by the COVID-19 suspension and a valid email acknowledgment, and the individual defendant clearly signed as a guarantor.

Summary judgment was granted in favour of the plaintiffs.