Kirkor Avedis Apel

The applicant, 2271047 Ontario Ltd. (Ecotech), brought a motion for summary judgment against the respondent, Window City Industries Inc., alleging breach of Minutes of Settlement.

Ecotech claimed Window City failed to "undertake best efforts" in collecting a default judgment against third parties and breached its contractual duty of good faith by not conducting examinations in aid of execution.

The court dismissed the motion for summary judgment, finding genuine issues for trial regarding the interpretation of "best efforts," the good faith obligations of the parties, the appropriate remedy, and the effect of a release clause in the settlement agreement.

The plaintiff lender moved for summary judgment to recover a mortgage deficiency following a power of sale.

The defendant admitted signing the mortgage but alleged she had been used as a dupe in a fraudulent mortgage scheme and asserted defences including non est factum, negligent lending, and breach of fiduciary duty, while advancing a counterclaim for damages.

The court held that the defendant produced no evidence supporting the alleged fraud or any involvement by the lender or its employees.

The record contained only speculative allegations and the defendant failed to put her best foot forward with admissible evidence.

Summary judgment was granted enforcing the mortgage and dismissing the counterclaim.

Following successful motions by the defendants for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure, the court addressed the appropriate costs awards for those motions.

The defendants sought costs on a partial indemnity basis exceeding $11,000 and $16,000 respectively.

The plaintiff argued that the requested amounts were excessive for motions of this nature.

Applying the principles under section 131 of the Courts of Justice Act and Rule 57.01, and emphasizing proportionality under Rule 1.04(1.1), the court concluded the requested amounts were excessive given the straightforward issues and the partial success achieved by the defendants.

The court awarded costs of $7,000 inclusive of HST and disbursements to each set of moving defendants.

The appellant appealed a conviction for impaired operation after pleading guilty, arguing the plea was involuntary and constituted a miscarriage of justice.

He asserted his judgment was impaired by alcohol, lack of sleep, anxiety, and pressure arising from being held in custody pending bail.

Fresh evidence was heard from duty counsel, Crown counsel, a toxicologist, and the appellant.

The court held that the appellant understood the nature and consequences of the plea, received competent legal advice, and voluntarily chose to plead guilty despite advice not to do so.

Stress and desire for immediate release did not render the plea involuntary.

The appeal was dismissed and the conviction upheld.