Kevin D. Sherkin

The appellants appealed a summary judgment enforcing a $500,000 promissory note and guarantee, arguing the action was barred by the limitation period and that the note should be treated as an advance on anticipated business profits rather than a loan.

The court held that, on the express terms of the note, the payee had a right but not an obligation to demand payment upon default, so the limitation period did not begin to run before the note’s maturity date.

The court also held that parol evidence could not be used to vary the terms of the promissory note.

The respondent’s cross-appeal seeking summary dismissal of the counterclaim as time-barred was also dismissed because the commencement of the limitation period for that claim remained a matter for trial.

The moving parties sought to quash the opposing parties’ attempt to revive and schedule a previously raised motion concerning an alleged breach of a Mareva injunction.

The earlier trial reasons and subsequent appellate decision left unresolved whether the injunction had been breached.

The court found that the trial judge had deferred the issue and that a later email from the trial judge declining to amend the judgment did not constitute a formal endorsement or order under the Rules of Civil Procedure.

Given the absence of a final adjudication and the lack of reasons, the issue remained open.

The court exercised its discretion to permit the matter to proceed so the alleged breach of the Mareva injunction could be determined.

Following the dismissal of a motion by the defendants to dissolve a Mareva injunction, the court addressed the issue of costs.

The plaintiffs sought costs of $22,170.43 inclusive of disbursements and HST, while the defendants argued the amount should be reduced to $15,000.

The court rejected the defendants’ criticisms of the time spent by plaintiffs’ counsel, noting the absence of comparative information about defence counsel hours and characterizing the challenge as unsupported.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure, the court found that a costs award of $22,000 inclusive of disbursements and HST was appropriate.

The moving defendants were ordered to pay the amount within 30 days, failing which the receiver was authorized to pay the award and charge it to the receiver accounts.

The defendants moved to set aside earlier ex parte orders granting a Mareva injunction and appointing a receiver over corporate assets allegedly used to shield property from enforcement of a substantial fraud judgment.

They argued that changed circumstances following a partial appellate reduction of the judgment, the alleged inadequacy of the plaintiffs’ undertaking as to damages, delay in prosecuting the action, and the balance of convenience justified dissolving the orders.

The court held that although the Court of Appeal reduced and modified aspects of the original fraud judgment, the defendant remained liable for over $12 million and the underlying factual basis for asset preservation had not materially changed.

The court also rejected arguments concerning the undertaking as to damages and delay, noting the extensive appellate proceedings that reasonably delayed progress.

The Mareva injunction and receivership orders therefore remained justified to preserve assets pending trial.

The plaintiff moved for summary judgment to enforce a $500,000 promissory note and dismiss a counterclaim.

The defendants argued the claim was statute‑barred and asserted that the loan was actually an advance against partnership profits.

The court held that the promissory note constituted a demand obligation, such that the limitation period under the Limitation Act, 2002 began to run only when demand for payment was made.

The court rejected attempts to introduce parol evidence contradicting the clear written terms of the promissory note and found no genuine issue requiring a trial regarding the validity of the debt.

Summary judgment was granted on the promissory note, but the counterclaim was permitted to proceed.

The appellant, a third mortgagee, appealed a summary judgment dismissing its action for damages for an alleged improvident sale and for an accounting under s. 27 of the Mortgages Act.

The appellant argued the motion judge applied the wrong test, the sale was improvident, and the second mortgagee was not entitled to add the first mortgage payout to its claim.

The Court of Appeal dismissed the appeal, finding that while the wrong test was applied, the respondent took reasonable precautions to obtain the true market value of the property.

The court also held the respondent was entitled to the payout amount under the doctrine of equitable subrogation.

The plaintiffs were defrauded of $1.3 million by a promoter who instructed them to deposit funds into a law firm's trust account.

The funds were subsequently disbursed on the promoter's instructions.

The plaintiffs sued the law firm and the responsible lawyer for negligence and breach of trust.

The defendants moved for summary judgment.

The court granted the motion, finding that the lawyers owed no duty of care to the non-client plaintiffs, as there was no proximity and the plaintiffs' reliance was not reasonable.

The court also found no fiduciary duty existed.

The defendant lender brought a motion for summary judgment dismissing a claim by a third mortgagee arising from a power of sale of residential property.

The plaintiff alleged the sale was improvident and challenged the defendant’s ability to add amounts paid to discharge a prior mortgage to its own mortgage debt.

The court held the sale price fell within the range of professional appraisals and did not demonstrate bad faith or fraud.

The court further held that the defendant was contractually and equitably entitled to add the payout of the prior mortgage to its own mortgage and recover that amount in priority to the plaintiff.

Finding the matter suitable for determination on a documentary record, the court granted summary judgment and dismissed the action.

A commercial condominium corporation sought a compliance order against a grocery store tenant and its landlord to prevent the display of merchandise on the common element sidewalk.

The application judge granted the compliance order, dismissed the landlord's oppression application, and awarded costs to the condominium corporation.

The landlord and tenant appealed the compliance order, and the condominium corporation cross-appealed the costs award.

The Court of Appeal dismissed the main appeal, finding the limitation period had not expired due to continuous breaches, and upheld the dismissal of the oppression application.

However, the Court allowed the cross-appeal on costs, finding the application judge erred in principle by failing to explain her calculation of 'additional actual costs' under s. 134(5) of the Condominium Act, 1998, and remitted the costs issue for reconsideration.

The plaintiff sued the corporate defendant and its principal for wrongful dismissal.

The defendants filed a joint statement of defence alleging cause, and the corporation counterclaimed.

The corporation later became insolvent, and its counterclaim was assigned to the principal.

After the corporation's statement of defence was struck for failure to attend discovery, resulting in deemed admissions of the plaintiff's allegations, the principal sought to amend his pleadings to continue the counterclaim.

The Court of Appeal upheld the decision denying the amendments, finding that because the principal stood in the shoes of the corporation, the deemed admissions made the counterclaim legally impossible to succeed, rendering the proposed amendments an abuse of process.

The appellants appealed a Superior Court decision that set aside an arbitrator's interlocutory orders, an order striking statements of defence, a final arbitral award, and removed the arbitrator.

The Court of Appeal allowed the appeal in part, holding that the application judge erred in setting aside the interlocutory orders, as the Arbitration Act does not permit judicial intervention for procedural decisions.

However, the Court upheld the setting aside of the order striking the pleadings and the final award, finding that the respondents were treated unfairly because their bankruptcy made compliance with the interlocutory orders legally impossible.

The removal of the arbitrator was also upheld.