Kevin D. Sherkin

This endorsement addresses two procedural issues arising from the appellants' motion to adduce fresh evidence on appeal, specifically concerning an allegation of ineffective assistance of counsel.

The first issue involved the production of two recordings made by former counsel, which the appellants argued were inadmissible due to a breach of professional conduct rules.

The court affirmed that a breach of professional conduct rules does not automatically render evidence inadmissible in civil proceedings and ordered the production of the recordings, subject to conditions for their use.

The second issue concerned the standing of former counsel to file evidence and a factum.

The court granted former counsel limited leave to intervene as an added party, allowing them to file a responding factum on the specific issue of whether ineffective assistance of counsel is a valid ground of appeal in civil proceedings.

The plaintiff sued the defendant police officers and their employer for negligent investigation after criminal charges of a sexual nature against him were withdrawn.

The defendants moved for summary judgment, which the motion judge dismissed on the basis that expert evidence was required to determine the standard of care and whether reasonable and probable grounds existed.

On appeal, the Divisional Court held that the motion judge erred in law; expert evidence is not required for a court to assess reasonable and probable grounds, as this is within the routine experience of a judge.

Finding that the police had reasonable and probable grounds based on the complainant's statements, the court allowed the appeal, granted summary judgment, and dismissed the action.

The defendants, having successfully obtained an order discharging a Certificate of Pending Litigation (CPL), sought substantial indemnity costs of $31,122.07.

The plaintiffs argued for a much lower award.

The court found that the plaintiffs had breached their obligation for full and fair disclosure of material facts on their initial ex parte motion to register the CPL.

Citing this material non-disclosure as an exceptional circumstance, the court awarded the defendants substantial indemnity costs as requested, payable jointly and severally by the plaintiffs.

The applicant, Hybrid Financial Ltd., sought a declaration that the buyout formula in a Royalty Agreement with the respondent, Flow Capital Corp., violated the criminal rate of interest provisions under s. 347 of the Criminal Code.

The court analyzed the Royalty Agreement and determined it was a hybrid financial transaction more akin to an equity investment than a traditional debt or credit facility.

Because the transaction did not constitute a 'credit advanced' and the payments were not 'interest', s. 347 did not apply.

The application was dismissed, and the applicant was ordered to comply with the buyout valuation process and resume its contractual obligations.

The defendants moved to set aside a certificate of pending litigation (CPL) registered against a property, alleging the plaintiffs failed to make full and frank disclosure on their ex parte motion and did not satisfy the test for CPL registration.

The court found the plaintiffs failed to disclose material facts, including a share pledge and purchase agreement, and that they lacked a direct interest in the property.

The court granted the defendants' motion, discharging the CPL, emphasizing the duty of full disclosure on ex parte motions and the absence of a triable issue regarding the plaintiffs' interest in the land.

The plaintiffs, former co-owners of a property, sued the defendants, real estate appraisers, for negligence and breach of contract arising from an appraisal report prepared for a prior arbitration.

The defendants brought motions for summary judgment to dismiss the claims based on expert witness immunity.

The court granted the defendants' motions, finding that the appraiser acted as an expert witness in the arbitration and is therefore absolutely immune from civil suit by both the adverse party and his own client for his report and testimony.

The court also held that issue estoppel did not apply to bind the defendants to the arbitrator's findings, as they were not privies to the arbitration.

Following a successful motion for default judgment against two defendants in a class action regarding a syndicated mortgage, the plaintiffs sought costs on a substantial or full indemnity basis.

The court declined to award elevated costs, finding no reprehensible conduct or special circumstances to justify a punitive costs award.

Costs were awarded to the plaintiffs on a partial indemnity basis, fixed at $35,000 all inclusive.

The appellant, Barry James Gallant, appealed a motion judge's finding that the respondent, Miranda Bailey's, obligations as a guarantor on a mortgage loan ended on June 28, 2014, and that she was not bound by subsequent mortgage extensions made without her notice.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error.

The motion judge had reasonably interpreted the mortgage documents, including standard terms, the mortgage agreement, and the mortgage schedule, to conclude that the guarantee's duration was limited to the 12-month period set out in the mortgage agreement, thereby modifying the standard terms.

The plaintiffs, Valerie Barkley and Ronald Beaupre, brought a motion for default judgment against Nicholas Dookhie and Diane Chetram, who were noted in default in a class action concerning losses from a syndicated mortgage investment.

The court found Dookhie and Chetram liable for negligence, negligent misrepresentation, and breach of fiduciary duty, having failed to meet the standard of care for mortgage brokers by not performing due diligence, misrepresenting the investment as safe, and failing to assess client suitability or provide required disclosures.

The motion was granted, awarding the subclass of 11 class members $434,017.40 plus pre- and post-judgment interest at rates of 12% or 9% depending on the investor's referral source.

The plaintiff, 385277 Ontario Ltd., sought costs incurred on a contempt motion where the defendants were found to be in contempt of two previous court orders.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure, including the importance and complexity of the matter, counsel's experience, hours spent, proportionality, and the defendants' conduct.

Given the defendants' wilful defiance of court orders and their failure to make costs submissions, the court found the plaintiff's requested costs reasonable and proportionate.

Costs were awarded on a partial indemnity basis, with leave for the plaintiff to seek a top-up to substantial or full indemnity after trial.

The applicant second mortgagee sought assignment of a first ranked mortgage and challenged the priority effect of undisclosed and unregistered mortgage amending agreements entered into after the first mortgage was assigned to the respondent.

The court held that the mortgagor was in default when the applicant demanded an assignment under s. 2 of the Mortgages Act, and that the respondent was obliged to assign the first ranked mortgage upon payment of $788,152.20.

Following prior authority on notice and subsequent encumbrancers, the court held that the undisclosed amending agreements did not obtain priority over the second mortgage.

The court also applied equitable estoppel because the respondent repeatedly represented that the first mortgage was in good standing while capitalizing unpaid interest and increasing the secured amount.

Distribution of proceeds and payment of costs were held in abeyance pending a related trial involving the intervenor.

This urgent motion before the Court of Appeal addressed whether a non-party, John Kavanagh, had an automatic right to appeal or should be granted leave to appeal two approval and vesting orders related to the sale of properties in a mortgage enforcement and insolvency proceeding.

The Receiver brought the motion to prevent automatic stays of the property sales.

The court found no automatic right of appeal under s. 193(c) of the Bankruptcy and Insolvency Act (BIA) because the orders were procedural and no loss exceeding $10,000 was demonstrated.

The court also denied leave to appeal under s. 193(e) of the BIA, concluding that the issues raised were not of general importance, lacked prima facie merit, and granting leave would unduly hinder the insolvency proceedings.

Consequently, Kavanagh's notices of appeal were quashed, and his motions for leave to appeal were dismissed, ensuring the property sales could proceed without automatic stays.

The defendant condominium corporation brought a motion to stay the plaintiffs' action against it pending mediation and arbitration under the Condominium Act, 1998 and the Arbitration Act, 1991.

The plaintiffs opposed the stay, arguing that the claims against the condominium corporation were intertwined with the claims against the developer and that bifurcating the proceedings would cause duplication and inconsistent verdicts.

The court found that while bifurcation was unreasonable and risked multiplicity, recent Supreme Court of Canada jurisprudence mandated a stay under section 7 of the Arbitration Act, 1991, as no statutory exceptions applied.

The motion to stay was granted.

The defendant 2613497 Ontario Inc. moved under Rule 37.14 to set aside a Mareva injunction and discharge Certificates of Pending Litigation, arguing the original order was obtained without notice and without full and fair disclosure.

The court found that the defendant's lawyers of record had participated in case conferences and filed responding materials for the original motion, establishing that the defendant had notice.

As the motion was not made without notice, Rule 37.14 did not apply, and the court dismissed the motion, awarding costs to the plaintiffs.

The moving party, the defendant, brought a motion for leave to appeal the order of Koehnen J. dated March 1, 2021.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs fixed at $5,000.

The applicant tenant brought an application for the interpretation of a commercial lease to determine responsibility for property taxes, utility arrears, renovation expenses, and management fees.

The court found that the lease unambiguously made the landlord responsible for property taxes.

The court also held the landlord responsible for utility arrears incurred prior to the lease that were necessary to maintain service.

However, the tenant was found responsible for renovation costs, as well as the landlord's reasonable legal and management fees.

The plaintiffs successfully obtained Mareva injunctions and certificates of pending litigation against the defendants in a prior decision.

They sought substantial indemnity costs of $306,793.48 or partial indemnity costs of $208,768.58.

The court found that the defendants' lack of transparency required the plaintiffs to incur significant costs to prove their case.

The court awarded the plaintiffs partial indemnity costs fixed at $175,000, payable forthwith, leaving open the possibility for the trial judge to increase the award to substantial indemnity if the plaintiffs succeed at trial.

The plaintiffs brought a motion for a Mareva injunction and Certificates of Pending Litigation against the defendants, alleging they perpetrated a Ponzi scheme involving mortgage and securities fraud.

The court found a strong prima facie case of fraud, oppression, and conspiracy, noting that tens of millions of dollars were raised without proper compliance and were unaccounted for.

The court inferred a strong risk of dissipation of assets based on the defendants' conduct, including the listing of a $4 million house and suspicious property transfers.

The motion for the Mareva injunction and CPLs was granted.

Following an appeal, the parties agreed on the judgment amount but could not agree on costs.

The respondent sought full indemnity costs of $20,866.02 based on the standard charge terms of the subject mortgage.

The Court of Appeal awarded the requested amount, finding it fair, reasonable, and proportionate given the appellant's unfounded allegations of fraud and new issues raised on appeal.

The appellant appealed a summary judgment enforcing a mortgage against her.

She argued the motion judge erred in denying an adjournment, failing to find the mortgage charged a criminal rate of interest, and granting summary judgment despite her allegations of fraud.

The Court of Appeal dismissed the appeal on the adjournment and fraud issues, and declined to hear the criminal interest rate argument as it was raised for the first time on appeal.

The appeal was allowed solely to correct calculation errors in the judgment amount related to an abandoned advance.