Ken MacDonald

Shareholders of a closely held private corporation sought a certificate of pending litigation against the former director's personal residence, alleging misappropriation of corporate funds.

The former director moved to discharge the CPL so that a scheduled property sale could close.

The court found a material non-disclosure on the ex parte motion — the moving parties failed to disclose the former director's responding affidavit explaining that his property had been pledged as security for the corporation's operating line of credit.

The court further found that the primary relief sought was repayment or damages, not a proprietary interest in land, and that the moving parties' interests could be adequately protected by having the net proceeds of sale paid into court.

The CPL was ordered discharged upon payment of net sale proceeds into court, with a disputed $49,990 charge in favour of the former director's law firm also to be paid into court pending further order.

The Plaintiffs' motion for a Mareva injunction and Norwich order against Defendant Jain was adjourned sine die due to significant procedural missteps by Plaintiffs' counsel.

These missteps included scheduling a long motion on a short motion date, failing to serve all parties as required by Rule 37.07(1), and providing inadequate notice and unhyperlinked materials.

The court found the alleged urgency was self-created and declined an interim order.

Costs were awarded against the Plaintiffs in favour of the appearing Defendants.

The parties were directed to attend Triage Court to schedule a long motion and consider civil case management.

The plaintiff brought an ex parte motion for a Mareva injunction and a Norwich order against the defendants.

The plaintiff had loaned $300,000 to the corporate defendant, which stopped making interest payments and failed to repay the principal.

The plaintiff presented evidence that the individual defendant was transferring assets out of the corporate defendant to avoid repaying debts.

The court found a strong prima facie case for breach of contract and fraudulent conveyance, and granted both the Mareva injunction and the Norwich order.

The plaintiff sought costs after successfully resisting the defendants' motions to strike and for summary judgment.

The court awarded the plaintiff $7,500 in costs for the motion to strike.

However, the court denied the plaintiff costs for the summary judgment motion because the plaintiff's principal sent an improper email threatening the defendants with criminal charges to extort a settlement.

The plaintiff purchased a commercial property from the defendants.

After closing, the plaintiff discovered that the version of a commercial lease provided by the defendants prior to closing was allegedly incorrect, and that the true lease obligated the landlord, rather than the tenant, to repair the roof.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claims for misrepresentation and breach of contract, arguing the plaintiff had already negotiated a price abatement for the roof and did not rely on the lease.

The court dismissed the motion, finding a genuine issue requiring a trial regarding whether the plaintiff lost the opportunity to seek contribution from the tenant based on the incorrect lease provided.

The individual defendants brought a Rule 21 motion to strike the plaintiff's claim against them for fraudulent misrepresentation.

The plaintiff alleged that the defendants, as officers/directors of the vendor corporation, knowingly provided a false lease and statutory declarations regarding the property's condition and tenant obligations during a property sale.

The defendants argued the claim was an attempt to convert a breach of contract into a personal tort.

The court dismissed the motion, finding the claim for fraudulent misrepresentation was sufficiently pleaded, as allegations of fraud, deceit, and dishonesty against corporate officers/directors can proceed, taking their actions outside their corporate role.

The defendants brought a motion for particulars of the plaintiff's statement of claim, which sought a declaration of constructive trust over properties, declarations of oppressive conduct or fraudulent conveyances, and damages.

The court partially granted and partially dismissed the motion.

Particulars were ordered for allegations regarding the indirect ownership of specific properties by each defendant and for clarifying the recipient and timing of alleged fraudulent transfers of income.

However, requests for particulars on the specific amounts claimed from each defendant for unjust enrichment/quantum meruit and the exact amounts of alleged rental payment transfers were dismissed, as these were deemed evidentiary matters not necessary for pleading.

Following a successful motion to set aside a registrar’s order dismissing the action for delay, the court determined the appropriate costs award.

The successful moving party sought full costs of $3,647 plus an additional punitive amount, alleging the opposing party’s conduct caused the dismissal and necessitated the motion.

The responding party argued the amount sought was unreasonable and proposed a substantially lower costs award.

The court accepted that the responding party’s conduct could be considered but declined to award the full amount or punitive costs.

Costs of $3,000 plus HST were ordered payable within 30 days.

The plaintiff moved to set aside a registrar’s order dismissing the action for delay under Rule 48 of the Rules of Civil Procedure.

The parties had agreed that the defendant would file the trial record and set the action down for trial by a court‑ordered deadline, but the defendant failed to file the trial record, resulting in the dismissal.

The plaintiff promptly brought a motion after learning of the dismissal and explained that the failure arose from the defendant’s omission.

The court held that the plaintiff had provided an acceptable explanation for the delay and that the defendant could not rely on its own failure to comply with the timetable.

Given admissions made by the defendant during discovery regarding the essential elements of the claim, the court found no non‑compensable prejudice and set aside the dismissal order.