Kevin D. Sherkin

The moving party brought a motion for leave to seek judicial review of an adjudicator's determination.

The Divisional Court granted the motion for leave and directed the parties to schedule a case management teleconference to establish a schedule and fix the questions for review.

Costs of the leave motion were fixed at $5,000, payable in the discretion of the review panel.

The bankrupt, a former real estate developer, sought an absolute discharge from bankruptcy.

The discharge was opposed by the Trustee, the Canada Revenue Agency, and several creditors, who argued that the bankrupt's assets were less than 50 cents on the dollar for reasons he could be held responsible for, and that he failed to perform his duties under the Bankruptcy and Insolvency Act.

The court found that the bankrupt had engaged in an asset protection strategy, incurred significant personal liabilities without the means to pay them, and failed to disclose his true post-bankruptcy lifestyle and use of a corporate credit card.

The court declined to refuse the discharge entirely but imposed a substantial conditional order requiring the bankrupt to pay $960,000 and fulfill various outstanding duties.

The moving parties brought a motion for leave to appeal a costs order made by the lower court.

The Divisional Court dismissed the motion for leave to appeal.

Costs of the motion were awarded to the respondent in the fixed, all-inclusive amount of $5,000.

1000093910 Ontario Inc., a company in receivership, appealed the motion judge’s decision to decline hearing its cross-motion and to grant the receiver’s proposal for a public auction of its primary asset.

The cross-motion sought to vary the receivership order and enforce an earlier agreement of purchase and sale (APS).

The Court of Appeal dismissed the appeal, finding that the motion judge's discretionary decision not to hear the cross-motion was not erroneous, given the appellant's late service of materials and the low chance of success for the earlier APS.

The court also found no error in principle in the motion judge's approval of the receiver's proposed sales process, which included a "stalking horse" agreement, as it was fair, transparent, and aimed at optimizing the asset's price.

The plaintiff, Lou Maieron, sued Ugo Guila (and related corporate defendants) and the Town of Erin, alleging an improper easement on his land.

The dispute arose from a 1997 settlement agreement between Maieron and Guila for the transfer of land (Block 56) subject to a water monitoring easement.

In 2003, Guila and the Town of Erin entered a Subdivision Agreement granting an expanded, permanent easement for stormwater management, including construction, over Block 56, without Maieron's involvement.

Maieron objected to this expanded easement in the deed and did not register it, but paid property taxes on the land.

At trial, Maieron sought to amend his claim to remove the expanded easement, replace it with the original monitoring easement, obtain reimbursement for taxes paid, and gain the right to remove installations.

The court dismissed the amendment request due to lengthy and unexplained delay, finding presumed prejudice to the defendants and that the claim was stale-dated.

The court also dismissed all of Maieron's claims, finding the Town of Erin was not a party to the original 1997 agreement and had statutory authority for its easement.

While Guila breached the 1997 agreement, Maieron failed to prove any damages.

The appellants, an investment syndicate holding a first mortgage, appealed an order denying their priority over a second mortgagee (Greenpath) for certain disputed amounts from a power of sale.

The application judge found these amounts were not properly part of the first mortgage and constituted prohibited penalties under s. 8(1) of the Interest Act.

The Court of Appeal dismissed the appeal, affirming that the forbearance agreement was separate from the first mortgage and not enforceable against the second mortgagee, and that the disputed prepayment and default fees were unlawful penalties under the Interest Act due to lack of evidence proving they were legitimate costs.

This is a consolidated appeal from anti-SLAPP motions dismissing defamation actions.

The actions arose from tweets and an email suggesting the appellant's medical clinic discriminated against the LGBTQ community.

The motion judge dismissed both actions, finding the communications were fair comment.

The Court of Appeal found the motion judge erred regarding Evans-Bitten's fair comment defence, concluding there were grounds to believe malice would defeat it.

After conducting the public interest weighing, the Court found the public interest in allowing the appellant's action against Evans-Bitten to proceed outweighed the public interest in protecting her expression, given the substantial harm and low public interest in protecting gratuitous personal attacks.

However, the Court upheld the dismissal of the action against Kirkconnell and Smith, finding no grounds to believe their fair comment defence would fail due to recklessness.

The plaintiffs, Empire Steel Inc. and Steelserve Corp., brought a motion to extend a preservation order and, in the alternative, for an injunction to prevent the defendants, Dass Metal Products & Dass Steel Service Centre et al., from disposing of 102 steel coils.

The plaintiffs alleged fraud and egregious deception by the defendants, who had unilaterally claimed the coils were damaged, refused payment, and allegedly sold them for scrap, while obstructing previous inspection orders.

The court found a strong prima facie case of fraud and a real risk of continued fraudulent conduct, granting the injunction to preserve the coils and ordering their transport to the plaintiffs' facility, with costs awarded to the plaintiffs.

The court-appointed Receiver moved for approval of its Third Report, activities, and the fees and disbursements of the Receiver and its counsel.

The debtor opposed the approval of the fees, arguing they were unreasonable because the receivership was straightforward and the debtor had ultimately refinanced the property.

The court applied the Diemer factors and found the fees to be fair and reasonable, noting that the receiver's activities were necessary at the time they were undertaken pursuant to court orders.

The court approved the fees in the amount of $247,953.15 and awarded costs of the motion to the Receiver.

This costs endorsement addresses the allocation of costs following two applications concerning the valuation of shares in 438056 Ontario Limited and the sale of a property under the Partition Act.

The court found divided success on the share valuation issues, leading to no costs award for that portion.

However, the Estate of Silvio Marsili was successful in its discrete claim for relief under the Partition Act, entitling it to costs for that specific aspect of the application.

The plaintiffs sought a Mareva injunction against multiple defendants in a dispute involving cryptocurrency investments.

The motion was dismissed for the third time, as the plaintiffs failed to provide sufficient evidence of a strong prima facie case or a real risk of asset dissipation by the defendants.

The court found the dispute to be primarily contractual, not indicative of fraudulent asset flight.

Costs were awarded to the defendants on a substantive indemnity scale.

The plaintiff sought leave to issue a certificate of pending litigation (CPL) on a property purchased by one of the corporate defendants.

The plaintiff alleged that funds owed to it for unpaid meat supplies were diverted by the debtor corporation's directors to fund the property purchase, claiming a constructive trust and tracing remedy.

The court dismissed the motion, finding the plaintiff was essentially an unsecured creditor seeking to secure a debt rather than asserting a genuine interest in land, and that other remedies were available.

The plaintiff/appellant appealed an Associate Justice's decision refusing to grant a writ of possession for a residential property.

The respondent spouse, who was not on title but claimed rights under the Family Law Act, argued that ongoing enforcement proceedings regarding a second mortgage prevented her from redeeming the first mortgage.

The Superior Court found that the Associate Justice made a palpable and overriding error by conflating the first and second mortgages.

The court held that the spouse had received adequate notice and opportunity to redeem but failed to do so, and ordered the issuance of a writ of possession.

Two related applications were brought to determine the priority and validity of $283,508.64 in disputed fees claimed by the first mortgagees following a power of sale.

The second mortgagee argued the fees were not part of the first mortgage and violated s. 8(1) of the Interest Act.

The court held that the forbearance agreement containing the fees did not form part of the first mortgage and could not be enforced in priority to the second mortgage.

Furthermore, the court found the default and prepayment fees constituted unenforceable penalties under s. 8(1) of the Interest Act, meaning they could not be claimed against the mortgagor or guarantor either.

This appeal concerned whether a "Royalty Purchase Agreement" constituted an advance of credit subject to the criminal interest rate provisions of section 347 of the Criminal Code.

The appellant, Hybrid Financial Ltd., argued that a buyout option payment under the agreement resulted in a criminal rate of interest.

The application judge had dismissed Hybrid's claim, characterizing the agreement as an equity investment and finding the payments not to be 'interest' or triggered by a voluntary act.

The Court of Appeal overturned this, holding that the substance of the transaction was an advance of credit, the buyout payment constituted 'interest' under the broad definition in section 347, and a contractual 'Maximum Permitted Rate' clause prevented the application of the 'voluntary act' exception, ensuring a lawful rate.

The matter was remitted to the Superior Court for determination of the buyout amount under the adjusted rate.

The appellants, found in civil contempt for disobeying a court order regarding property use and trespassing, appealed their $1,000,000 fine.

They sought to introduce fresh evidence, alleging ineffective assistance of trial counsel.

The Court of Appeal dismissed the application for fresh evidence, finding it lacked due diligence and would not have affected the outcome.

The court upheld the sentencing judge's findings that the contempt was flagrant, protracted, deliberate, and profitable, and that the fine was fit, dismissing the appeal.

Two applications were brought to determine the fair market value of shares held by the late Silvio Marsili in 438506 Ontario Limited, pursuant to a buy-sell agreement triggered by his death.

The parties' expert business valuators disagreed on valuation methodology, EBITDA normalizations, contingent liabilities, and the minority discount.

The court resolved the specific valuation disputes, preferring the respondent's expert on methodology but the applicant's expert on several normalizations and contingent liabilities.

The court directed the experts to prepare revised valuation opinions incorporating its findings.

The court also granted the applicant's request for an order for the sale of a jointly owned property under the Partition Act.

The plaintiffs, purchasers of pre-construction condominium and freehold units, brought motions for certificates of pending litigation (CPLs) against the development property after the original developer became insolvent and transferred the property to a new developer.

The purchase agreements contained non-registration clauses prohibiting the registration of CPLs.

The court found that while there was a triable issue regarding an interest in land based on constructive trust, the non-registration clauses and the equitable factors from Dhunna—including the lack of uniqueness of the property, the adequacy of damages, and the prejudice to new innocent purchasers—weighed heavily against granting the CPLs.

The motions were dismissed.

This decision addresses a request to coordinate two appeals arising from a single lower court decision that dismissed defamation actions under anti-SLAPP legislation.

The appellants sought separate hearings, while the respondents requested the appeals be heard together.

The appeal management judge ordered the appeals to be heard concurrently, emphasizing judicial economy and efficiency, and finding no principled reason to hear them separately despite the appellants' arguments regarding factual and legal dissimilarities between the two cases.

The plaintiff moved for summary judgment seeking payment of a liquidated debt of $795,852.80 plus post-judgment interest, arising from the defendants' breach of a 2014 agreement regarding unpaid royalties and an indemnity.

The defendants did not oppose the motion.

The court found the plaintiff's materials amply supported the claim and granted judgment in the requested amount, along with agreed partial indemnity costs of $20,369.42.