Lawrence Hansen

The plaintiff by counterclaim discontinued its action against a defendant by counterclaim, who had been named solely because he appeared as a director in government records.

The released defendant sought costs on a substantial indemnity basis.

The court found that while the defendant was entitled to costs for his continued participation, the plaintiff by counterclaim was not entirely at fault for relying on the government records.

Costs were awarded to the released defendant fixed at $8,300 on a partial indemnity basis.

This is a costs endorsement following a successful summary judgment motion brought by Robin Seligman in a mortgage enforcement action.

Seligman sought costs, as did Sonia Lafontaine and Arthur Froom.

The court awarded costs of $43,196.60, inclusive of disbursements and taxes, to Robin Seligman, to be paid solely by 1285310 Ontario Limited.

The claims for costs by Sonia Lafontaine and Arthur Froom were dismissed, as neither was successful in the underlying motion.

The applicants sought a declaration that their late parents acquired possessory title to a parcel of land adjacent to their home through adverse possession.

The disputed property was originally part of a larger family lot, half of which the parents purchased in 1962.

The court found that while the parents had actual possession of the disputed land since the 1960s, they did not form the intention to exclude the legal owners until a family dispute arose in 1989.

From 1989 onwards, the parents openly claimed ownership and the legal owners failed to take action within the ten-year limitation period.

The court granted the application, finding possessory title was established before the land was converted to the Land Titles system in 1999.

The plaintiff brought a motion for summary judgment in a mortgage enforcement action against the defendant company and its alleged director.

The company opposed the motion, arguing the mortgage was a 'fraudulent instrument' under the Land Titles Act because the director fraudulently held herself out as an officer of the company to obtain the mortgage.

The court granted summary judgment, finding that even if the allegations of fraud were true, the director was not a 'fictitious person' and did not hold herself out to be the registered owner of the property, meaning the mortgage did not meet the statutory definition of a fraudulent instrument.

The applicants, members of the Geneva Park community and Friends of Geneva Park, brought an urgent application seeking declarations of trust (implied, constructive, resulting, or charitable purpose trust) over the Geneva Park property, an order for directions or investigation under the Charities Accounting Act, production of the sale agreement, a Certificate of Pending Litigation, and an interim injunction to prevent the sale of the property by YMCA of Simcoe/Muskoka (YSM) to a private purchaser.

The applicants argued that their historical donations and contributions created a beneficial interest or trust.

The court dismissed the application, finding no evidence to support the creation of any trust, no misuse of charitable funds by YSM, and that granting an injunction or CPL would be unjust and inequitable, as the sale was a reasonable solution for the financially struggling charity.

The plaintiff estate trustee brought a motion for default judgment to rectify title to a condominium property.

The deceased plaintiff had alleged that the defendants fraudulently transferred the property into joint tenancy, registered a forged power of attorney, and obtained a mortgage without his knowledge or consent.

The court found the instruments were fraudulent under the Land Titles Act and ordered them deleted from title.

The court also awarded $10,000 in punitive damages against the fraudulent actor and substantial indemnity costs.

The parties could not agree on the terms of a formal order following a previous endorsement.

The court resolved the disputes over the competing draft orders, deciding to include a reference to the Investigative Receiver's Interim Report, declining to add a preamble regarding an undertaking as to damages, and including a paragraph explicitly dismissing the defendant's motion to set aside an ex parte order for lack of full and fair disclosure.

The plaintiffs obtained an ex parte order for a Certificate of Pending Litigation, a Mareva injunction, and the appointment of an Investigative Receiver.

The defendant Bayview Creek (CIM) LP moved to set aside the injunction, arguing the plaintiffs failed to make full and fair disclosure of material facts.

The court found no material non-disclosure or lack of frankness regarding the plaintiffs' allegations of misrepresentation and breach of terms.

Due to the complex commercial interests involved, including mortgagees intending to bring enforcement proceedings, the court transferred the matter to the Commercial List and extended the interim orders.

The moving party defendant in a receivership proceeding brought a motion to compel the receiver to comply with a final order and distribute the remaining funds.

The receiver sought directions to approve additional fees and disbursements that it had mistakenly omitted before the final order was entered.

The court held that the final order subsumed the initial receivership order and could not be amended under Rule 59.06(1) of the Rules of Civil Procedure, as the error was made by the receiver, not the court, and the facts were known before the order was entered.

The moving party's motion was granted, and the receiver's request for additional fees was denied.

The appellant appealed a summary judgment that granted judgment on two promissory notes and dismissed its counterclaim.

The Court of Appeal found no error in the motion judge's discretionary decision to refuse leave for a further affidavit, noting it was proffered late and would be unfair.

The court agreed that the evidence did not raise a genuine issue requiring a trial, as the appellant's assertions were unsubstantiated.

The proposed fresh evidence on appeal also failed to meet the admission test.

The appeal was dismissed.

The plaintiffs, Robert and Donna Van Nispen, brought a motion for summary judgment seeking payment of the outstanding purchase price for a business sold to the defendant, McCarron & Chobotiuk Financial Services Inc., and dismissal of the defendant's counterclaim.

The defendant alleged breach of contract, client solicitation, and breach of fiduciary duty by the plaintiffs.

The court found no credible evidence to support the defendant's claims of client diversion or breach of fiduciary duty.

The defendant failed to present sufficient evidence to raise a genuine issue requiring a trial, despite opportunities to file additional material.

Consequently, the motion for summary judgment was granted, and the counterclaim was dismissed.

The court heard three motions for summary judgment in two related actions concerning second and third mortgages on a property.

The defendant, Hassan Talani, challenged the validity of these mortgages, claiming the property was a matrimonial home requiring spousal consent and that prior mortgages prohibited subsequent encumbrances.

He also counterclaimed against his real estate lawyer, Laman Meshadiyeva, alleging negligence and exploitation of a gambling addiction.

The court rejected Talani's arguments, finding no genuine issue for trial regarding the matrimonial home status or the validity of the mortgages.

The court also dismissed Talani's counterclaim against Meshadiyeva due to lack of evidence.

Partial summary judgment was deemed appropriate, removing the mortgagees and lawyer from the litigation while allowing other discrete claims to proceed.

The applicant, a third mortgagee, brought an urgent application for an injunction to prevent the first mortgagee from selling a commercial property under a power of sale, and for an order permitting it to redeem the mortgage.

The court found that the applicant's right to redeem was extinguished when the first mortgagee accepted an offer to purchase the property, as the applicant had failed to tender the required funds when it had the opportunity to do so.

The court also held that the applicant failed to meet the three-part test for an interlocutory injunction, finding no serious issue to be tried regarding alleged bad faith, no irreparable harm, and that the balance of convenience favoured the respondents.

The application was dismissed.

The plaintiff brought a motion for default judgment against several defendants who were noted in default in an action for mortgage fraud.

The plaintiff alleged that one defendant impersonated his brother to obtain a mortgage loan, facilitated by the other defendants acting as mortgage brokers.

The court dismissed the motion, finding that the facts deemed admitted and the evidence provided did not establish the necessary connection between the proceeds of the fraud and the defendants noted in default, as there was no evidence regarding who negotiated the bank drafts from the lawyer's trust account.

The Royal Bank of Canada (RBC) brought an application seeking a declaration that a respondent, Carlo Casamirro Nonis, owned 50% of the matrimonial home and an order for its partition and sale.

The co-respondent, Adina Nonis, resisted, claiming Carlo held his interest in trust for her.

The court found that Carlo did not hold his interest in trust for Adina.

Consequently, the transfer of Carlo's share to Adina, which occurred shortly after RBC demanded payment on Carlo's guaranteed debts, was deemed a fraudulent conveyance under both the Bankruptcy and Insolvency Act and the Fraudulent Conveyances Act.

The application was granted, confirming Carlo's 50% ownership and ordering the partition and sale of the property.

The defendants moved to set aside a default judgment for $499,363.29 (CAN) plus costs, which was entered due to their failure to defend an action for collection of gas turbine filter sales.

The court applied the three-part test from Morgan v. Toronto (City) Police Services Board, assessing delay, explanation for default, and arguable defence on the merits.

The Master found a lengthy, inadequately explained delay and an insufficient explanation for the initial default.

Furthermore, the defendants failed to demonstrate an arguable defence with an "air of reality" regarding the identity of contracting parties, product deficiencies, delivery delays, or the return of unsold filters.

The motion was dismissed, and costs were awarded to the plaintiff.

In a bankruptcy discharge proceeding, a creditor sought substantial indemnity costs for opposing the bankrupt’s discharge as well as recovery of the trustee’s legal fees and administrative expenses.

The court had previously denied the bankrupt’s discharge and was asked to determine the appropriate costs consequences.

Applying s. 197(2) of the Bankruptcy and Insolvency Act, the court held that costs normally follow the event on a partial indemnity basis.

While the creditor was successful in opposing the discharge, the court declined to award substantial indemnity costs and reduced the requested amount to $1,500 to avoid imposing an excessive financial burden that would undermine the debtor’s potential rehabilitation.

Determination of the trustee’s legal costs and expenses was deferred to the final discharge hearing and taxation of the trustee’s accounts.

The plaintiffs brought a motion under Rule 48.11 to restore their personal injury action to the trial list after it was struck due to litigation delay.

The court applied the conjunctive test from Nissar, finding that despite significant periods of inactivity and dilatory conduct by plaintiffs' counsel, there was an acceptable explanation for the delay overall.

The court also found the defendant would suffer no non-compensable prejudice.

The motion was granted, but costs were awarded to the defendant due to the plaintiffs' repeated failures to meet deadlines.