Kevin D. Sherkin

Following summary judgment in a mortgage debt enforcement action, the court determined the appropriate costs award.

The successful lender sought substantial indemnity costs of approximately $78,500 relying on contractual mortgage provisions and the defendant’s untenable defence.

The court held that although the lender had a strong argument for elevated costs, the legal resources deployed were disproportionate given the simplicity of the claim and the self‑represented defendant’s weak position.

Exercising its discretion despite the contractual clause, the court reduced the costs award as unreasonable and excessive.

A lump‑sum costs award of $38,000 inclusive was ordered.

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 trial judgment finding them liable for over $20 million in damages for improperly placing a paving company, Osler, into bankruptcy as part of a fraudulent scheme to deprive the respondents (the Alfano family trusts) of their 87 percent equity interest.

The Court of Appeal upheld the finding of liability against Mr. Piersanti, agreeing that he orchestrated a fraudulent scheme, including concocting a fake shareholders' agreement and assigning the company into bankruptcy.

The Court also upheld the trial judge's decision to exclude the appellants' expert witness for lacking independence and acting as an advocate.

However, the Court allowed the appeal in part by setting aside the liability finding against Ms. Piersanti, reducing the compensatory damages to $14,391,807 based on adjustments conceded by the respondents' expert at trial, and setting aside orders requiring a related company to pay $2.5 million into court and declaring an interest in certain properties.

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.

The appellant appealed a summary judgment enforcing a California default judgment against him.

He argued that the California court's jurisdiction was obtained by fraud, specifically alleging that the complaint falsely claimed he signed certain contracts.

The Court of Appeal dismissed the appeal, finding a real and substantial connection between the causes of action and California, and concluding that the appellant failed to present evidence of fraud going to jurisdiction.

The court held that the appellant was improperly attempting to re-litigate facts already determined by the default judgment.

The appellants appealed an order granting them an adjournment on the condition of a limited draw against debtor-in-possession (DIP) financing.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's order.

The court held that since the appellants sought the indulgence, the terms imposed were an entirely reasonable exercise of the motion judge's discretion.

The appellant, a judgment creditor of a corporation, appealed a summary judgment dismissing its oppression claim against the corporation's directors and shareholders.

The appellant argued the respondents acted oppressively by failing to set aside funds to satisfy its judgment while repaying shareholder loans and other creditors.

The Divisional Court dismissed the appeal, upholding the motions judge's finding that the respondents did not strip assets from a profitable company, but rather funded it, and the appellant had no reasonable expectation that a reserve would be maintained for its contingent claim.

The appellant appealed an order denying her leave to commence a derivative proceeding on behalf of a dissolved corporation.

The motions judge had found that the appellant was not acting in good faith due to substantial delay and a multiplicity of actions.

The Divisional Court dismissed the appeal, holding that the motions judge's finding of a lack of good faith was owed deference and that the appellant failed to demonstrate a palpable and overriding error.

The appellants appealed a trial decision dismissing their claim for personal liability against the individual respondent, Stewart.

The claim arose from home renovation contracts signed under the business name 'Renoclub', which failed to disclose the underlying numbered corporation in breach of the Business Corporations Act and Business Names Act.

The Divisional Court upheld the trial judge's finding that such breaches do not automatically result in personal liability, and that the evidence established the appellants knew they were dealing with a corporation rather than Stewart personally.

The appeal was dismissed.

The applicants sought relief under the Arbitration Act and judicial review under the Judicial Review Procedure Act to challenge an arbitrator's award.

The Divisional Court held it lacked jurisdiction under the Arbitration Act, as such applications must be brought before the Superior Court of Justice.

The Court also held that judicial review is a public law remedy unavailable to challenge a private consensual arbitrator's award.

The application for judicial review was quashed, and the remaining relief was referred to the Superior Court.

The appellant appealed a decision setting aside his bankruptcy discharge.

The Court of Appeal dismissed the appeal, finding that the issue of standing was not raised below and could not be raised for the first time on appeal.

The court also upheld the admission of fresh evidence and agreed that there were grounds to set aside the discharge under s. 158(j) of the Bankruptcy and Insolvency Act.

The appellant appealed an order finding its bid in a receivership sale process to be invalid.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the agreed process required parties to submit their final and best offer by a specified date and that the bids were to remain confidential.

As such, an auction was not contemplated, and the appellant's bid was properly ruled invalid.

The moving parties sought leave to appeal an interlocutory injunction that prevented them from directly soliciting the responding party's customers after their business relationship deteriorated over allegations of contaminated products.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's application of the RJR Macdonald test for an injunction, including the findings of a serious issue to be tried, irreparable harm to the responding party's business relationships, and the balance of convenience favouring the responding party.

The appellant appealed a motion judge's decision dismissing its breach of contract and warranty claim against an American respondent for lack of jurisdiction.

The motion judge found no real and substantial connection between the respondent and Ontario.

The Court of Appeal allowed the appeal, finding that the motion judge failed to properly weigh the factors from Muscutt v. Courelles and conflated a choice of law clause with a choice of jurisdiction clause.

The matter was remitted for re-hearing before a different judge.

The appellant employer appealed a trial judgment finding that its former successful salesperson was not a fiduciary and did not misuse confidential information when he left to start a competing business.

The Court of Appeal upheld the trial judge's findings, noting the employee had no management authority, hiring power, or corporate decision-making ability, and thus was not a fiduciary despite his high sales volume.

The Court also agreed that the customer information used was not confidential and the industry relied more on price and service than personal influence.

The appellant appealed a trial judgment, arguing that the trial judge erred in finding that a denial in the statement of defence, when read with a letter from the respondent's counsel, did not constitute an admission.

The Court of Appeal dismissed the appeal, holding that it was open to the trial judge to conclude there was no unambiguous concession and that the denial put the plaintiff to the proof of its allegations.

The appellants appealed an order dismissing their claim against subsequent purchasers for arrears of common expenses accumulated during the occupancy of a mortgagee in possession.

The Court of Appeal found no error in the motions judge's conclusion that the discharge of the appellants' liens provided a complete answer to the claim.

The appeal was dismissed, subject to a minor amendment to the judgment to clarify that only specific paragraphs of the Statement of Defence and counter-claim were dismissed.

The appellants appealed a judgment finding them liable for corporate oppression and ordering them to pay $1,075,000 to the respondent.

The application judge found that the individual appellant stripped the corporate appellant of profits from a property sale to purchase another property, defeating the respondent's ability to collect on a prior judgment.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the application judge's conclusion that the conduct was oppressive, and upholding the remedy and substantial indemnity costs award.