K. Daniel Reason

The Court of Appeal for Ontario dismissed Kenneth Reed's appeal from a summary judgment in favour of the Bank of Nova Scotia regarding two lines of credit for his farming operation.

The court found that summary judgment was appropriate, the Consumer Protection Act did not apply as Reed was not a consumer, and a stay under the Farm Debt Mediation Act did not apply to the appeal itself but did stay enforcement of the judgment pending mediation.

Costs of $7,500 were awarded to the Bank.

The appellant, Narman Abri, appealed a motion judge's decision to grant a nunc pro tunc order, deeming a statement of defence and counterclaim issued on the date of filing, despite not being formally issued before the limitation period expired.

The Court of Appeal affirmed the motion judge's decision, distinguishing the case from precedents requiring leave to commence an action.

The court found the lack of issuance to be a procedural irregularity under Rule 2.01, not undermining the purposes of limitation periods, as the appellant had notice of the counterclaim.

The appellant, Mr. Flight, appealed two orders from a motion judge concerning three issues: whether the transfer of a "Trustee Action" to him required the Trustee's consent, the Trustee's production of documents, and the motion judge's costs award.

The Court of Appeal dismissed the appeal, finding no reversible error in the motion judge's conclusions regarding document production or the costs award.

The court also noted that the issue of Trustee consent for the action transfer had been previously addressed in a prior decision and was currently under reserve by another motion judge, thus requiring no further comment from the Court of Appeal.

The plaintiff, Devi Financial Inc., brought a motion for summary judgment against the corporate defendants (Everwood Place Ltd. and Hyde Park Crossing Ltd.) for a mortgage debt and against Trevor Bond on a personal guarantee.

The defendants argued that Mr. Bond signed the guarantee only as an agent for the corporations and challenged the adequacy of default notice and the inclusion of certain fees (a three-month bonus interest and an administrative fee).

The court applied the Hryniak v. Mauldin test for summary judgment, finding no genuine issue requiring a trial.

The judge determined that Mr. Bond, a sophisticated businessman, clearly signed the guarantee in his personal capacity, and his "belief" to the contrary was commercially untenable.

The court also found that proper notice was given and that the bonus interest and administrative fee were contractually recoverable.

The claimant law firm sought costs for two motions regarding the enforcement of Certificates of Proof of Claim for unpaid solicitor accounts.

The debtor opposed and sought costs, arguing he was entirely successful on one motion and partially successful on the other.

The court found that success was divided, as the debtor succeeded on one motion but failed in his request to have the accounts assessed, while the claimant was substantially successful on the second motion.

The court exercised its discretion under s. 131(1) of the Courts of Justice Act and ordered that neither party be awarded costs.

A law firm sought orders permitting enforcement of two Certificates of Proof of Claim obtained under the former Creditors’ Relief Act by issuing writs of seizure and sale against a former client for unpaid legal accounts arising from matrimonial litigation.

The debtor argued the certificates were invalid due to breaches of the Solicitors Act, including commencing recovery proceedings while accounts were under assessment and bringing a claim within one month of delivering a bill.

The court held that proceedings under the Creditors’ Relief Act constituted an “action” for the purposes of the Solicitors Act.

As a result, the first certificate was a nullity due to breach of s. 6(4), while the second certificate was partially unenforceable because part of the claim violated s. 2(1).

The sheriff was directed to enforce the second certificate only for the reduced amount calculated by the court.

The plaintiff finance company brought a motion without notice seeking an order authorizing a bailiff to seize leased trucks from the defendant lessee following alleged payment defaults.

The court scrutinized the request under Rule 44 of the Rules of Civil Procedure, the Personal Property Security Act, and the Courts of Justice Act.

The judge held that the motion improperly sought final relief without notice, failed to comply with Rule 44 requirements for interim recovery of personal property, and relied on a proceeding commenced by action when the statute required an application.

The materials also failed to address potential third‑party interests in the collateral and raised concerns about incomplete disclosure to the court in a without‑notice motion.

The court emphasized the high threshold for ex parte relief and the duty of full and frank disclosure.

The motion was dismissed without prejudice to the plaintiff commencing proper proceedings.

Following an application for judgment on a disputed debt, the successful party sought substantial indemnity costs relying on a pre‑litigation offer to settle.

The court held that the offer could not trigger Rule 49 cost consequences because it was made before any proceeding had been commenced.

The court also rejected arguments that cross‑examination provisions governing motions applied to the application.

Applying Rule 57 and the principle of proportionality between the amount in dispute and the costs claimed, the court found the requested costs excessive and awarded reduced partial indemnity costs.

The applicant sought possession of six trailers and damages for conversion.

The respondents had previously sold their trucking company but retained a general security agreement.

When the new company went bankrupt, the respondents instructed a receiver to sell the applicant's trailers, despite knowing the applicant had a prior perfected security interest under the Personal Property Security Act.

The court found the respondents personally liable for conversion, as they acted under their personal security agreement.

Damages were assessed at $129,500, and the respondents' claim for a set-off for storage and maintenance was dismissed.