Kevin Sherkin

The appellants challenged summary judgment enforcing a $2.1 million promissory note, arguing procedural unfairness, evidentiary error, and lack of consideration.

The court rejected all grounds and upheld enforceability against both appellants.

The moving party sought panel review after a chambers judge refused to lift an automatic stay pending appeal.

Applying the deferential review framework for s. 7(5) CJA panel review, the court found no error in principle or unreasonable result and dismissed the review motion.

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 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.

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 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 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.

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 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 appeal that reduced the plaintiff's damages award in a construction lien trial, the court considered written submissions on the costs awarded by the Master.

The Master had originally awarded the plaintiff $485,000 in costs based on an erroneous application of Rule 49.

The court found that the plaintiff's second offer to settle implicitly withdrew its first offer, and since the reduced damages award was less than the second offer, Rule 49 did not apply.

The court reduced the Master's costs award to $236,500 on a partial indemnity scale to reflect proportionality and the reduced damages award.

The Monitor in a CCAA proceeding brought a motion to disallow a $2.3 million secured claim filed by a creditor.

The Monitor argued the secured guarantee given by the insolvent debtor was a transfer at undervalue under s. 96 of the BIA or a fraudulent conveyance.

The court dismissed the motion, finding that the debtor and creditor were operating at arm's length and that the Monitor failed to prove the debtor granted the guarantee with the intent to defraud, defeat, or delay creditors.

The defendants brought a motion to oppose the confirmation of a Master's report following a 29-day trial on a construction lien reference.

The Master had awarded the plaintiff $243,325.20 plus costs and elevated pre-judgment interest, largely based on adverse credibility findings against the defendants.

The Superior Court found that the Master made a palpable and overriding error by misreading the date on a key invoice, which tainted his credibility assessment and led to an erroneous $72,000 award for 'extra' design work.

The court deducted the $72,000 from the judgment and reduced the pre-judgment interest to the statutory rate, but upheld the Master's findings on commissions for builder upgrades, price reductions, and post-termination items.

The defendants were awarded $19,000 in costs for the motion.

The moving party, a condominium corporation, sought an order under s. 44(2) of the Construction Lien Act to vacate a construction lien registered by the respondent contractor upon posting security in an amount significantly less than the $2,744,377 claimed.

The dispute arose from a fixed-price contract for condominium renovations where the scope of work expanded, leading to unapproved change orders and an extended duration claim.

The court reviewed the evidence and found that while many factual disputes required a trial, certain portions of the lien claim, including specific unapproved change orders and most of the extended duration claim, lacked a proper evidentiary foundation.

The court ordered the lien vacated upon the posting of security reduced by $1,181,833.79 plus HST, along with $50,000 for costs.

The applicant and respondent, corporate entities controlled by a son and father respectively, jointly owned a commercial property.

The applicant sought an order for the sale of the property under the Partition Act, which the respondent opposed, citing malicious conduct and a contractual right of first refusal.

The respondent also claimed unpaid rental income.

The court held that the applicant had a prima facie right to sell the property and had not acted maliciously, but was bound by the right of first refusal.

The court ordered that the applicant's prior offer to sell its interest to the respondent remain open for an additional 60 days, after which the property could be sold on the open market if no agreement was reached.

The court also ordered the applicant to pay the respondent its share of outstanding rental payments.

In a priority dispute under the Construction Lien Act, the court determined the relative priorities of several mortgagees and construction lien claimants.

The court held that professional fees incurred by a first mortgagee to protect its security constituted an 'advance' under section 78(6) of the Act, granting it priority.

The court also found that a $10 million advance made jointly to two borrowers under a second mortgage was an advance in respect of that mortgage, giving it priority over the lien claimants.

However, the court ruled that an advance made under a loan agreement to a third party was not an advance in respect of a collateral mortgage given by the developer as guarantor, meaning the lien claimants had priority over the collateral mortgage.

The applicants sought declarations that the respondent, the mayor of Caledon, contravened the Municipal Conflict of Interest Act by voting on land development matters in which he allegedly had a pecuniary interest.

The court found no evidence that the respondent had a direct or indirect pecuniary interest in the matters voted upon, noting that his property was located several kilometers away from the developments and any potential development of his land was decades in the future.

Both applications were dismissed.

A commercial landlord brought an application seeking interpretation of a lease and additional rent for a basement area occupied by the tenant’s assignee following insolvency proceedings.

The court examined the lease language, surrounding negotiations, and principles of contractual interpretation under Sattva.

It held that the basement was not part of the leased premises, but the lease rent was calculated on a per‑square‑foot basis.

The tenant’s assignee was therefore liable to pay rent for the basement based on the lease rate for its square footage from the date of assignment.

The landlord’s separate claim for rectification of the lease to reflect greater square footage of the upper floors was dismissed because the landlord had expressly waived the contractual right to remeasure the premises.

The moving parties, construction lien creditors of the Mady Group of Companies, brought a motion seeking to lift a CCAA stay of proceedings, amend their statements of claim, and obtain a Mareva injunction against several individuals and corporations.

The court dismissed the motion, finding that the moving parties failed to make full and fair disclosure, failed to establish a strong prima facie case of fraud or breach of trust, and provided no evidence of a risk of dissipation or removal of assets from the jurisdiction.

The owner of a condominium construction project moved to reduce posted security and obtain summary judgment discharging or reducing a contractor’s construction lien claims.

The moving party argued the contractor’s liens should be eliminated or reduced because a subcontractor’s lien action had been dismissed, because contract prices allegedly contained PST eliminated by the introduction of HST, and because the owner paid $40,000 directly to a sub‑subcontractor.

The court held that dismissal of the subcontractor’s lien did not affect the contractor’s lien rights, as lien entitlement is based on the contract price between owner and contractor under the Construction Lien Act and not on the subcontractor’s separate claims.

The court also rejected the alleged PST credit due to insufficient evidence.

The motion succeeded only to the extent that the contractor’s liens and posted security were reduced by $40,000 corresponding to the direct payment to the sub‑subcontractor.