M. Paul Downs

The applicant auto dealership sought a declaration that it was the rightful owner of numerous classic vehicles that were allegedly stolen by a fraudster and sold to innocent purchasers.

The respondent purchasers argued they acquired good title under the Sale of Goods Act and Factors Act, and relied on vehicle permits issued by Service Ontario.

The court held that a vehicle permit under the Highway Traffic Act does not confer legal ownership superior to a prior valid title.

However, finding that material facts remained in dispute regarding whether the fraudster acted as a mercantile agent for the dealership, the court ordered a trial of an issue to hear viva voce evidence on the relationship between the parties.

The moving parties sought leave to appeal the order of Tranquilli J. dated January 14, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the amount of $7,857.16.

The plaintiffs, an investment corporation and its principals, suffered losses from a failed real estate development and sought to recover their unsecured investment in priority to secured creditors.

The secured creditors (defendants) brought motions for summary judgment to dismiss the plaintiffs' claims.

The court dismissed the summary judgment motions, finding complex factual issues, multiple credibility assessments, and a risk of inconsistent findings if partial summary judgment were granted.

The court concluded that the current record was not appropriate for summary judgment and that a full trial was required to resolve the intertwined issues, including allegations of knowing receipt of trust property and conspiracy.

The moving party brought a motion for leave to appeal a December 23, 2019 order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $2,500 to the respondents.

The plaintiff was successful on a motion for summary judgment for the sale of a mortgaged property and sought substantial indemnity costs of $16,285.09 based on the mortgage covenant.

The self-represented defendant did not file costs submissions.

The court considered the factors under Rule 57.01(1), noting the defendant unduly prolonged the matter and advanced meritless arguments.

The court fixed costs payable to the plaintiff at $15,000 inclusive of HST and disbursements.

The defendants moved to discharge a certificate of pending litigation (COPL) registered against a property after the plaintiff corporation had been voluntarily dissolved.

The plaintiffs alleged the property had been fraudulently transferred prior to dissolution and sought to maintain the COPL, arguing that shareholders retained a beneficial interest or that the court should preserve the certificate on a nunc pro tunc basis pending revival of the corporation.

The court held that a dissolved corporation lacks capacity to commence or maintain proceedings and therefore cannot sustain a COPL.

Shareholders of a dissolved corporation also cannot assert personal claims for wrongs done to the corporation or step into its position to maintain the certificate.

The court declined to exercise nunc pro tunc discretion, finding that the alleged fraud and potential revival of the corporation were matters for trial and did not justify maintaining the encumbrance.

The appellants appealed a trial judgment finding them liable either as guarantors or on a promise to purchase promissory notes.

The Court of Appeal dismissed the appeal, agreeing with the trial judge's interpretation of the agreement based on the context and intention of the parties.

The court also refused to interfere with the trial judge's costs order and awarded costs of the appeal to the respondents.

The appellants appealed an Engineer's Report under the Drainage Act regarding the Saxon Drain Branch No. 1.

The Engineer discovered that the appellants had installed tile drains that diverted water from outside the historical Saxon Drain watershed into the drain, overburdening its capacity.

The Engineer recommended blocking the unauthorized tiles and improving the adjacent Bateman Drain.

The appellants argued the historical watershed was incorrectly defined and their tiles did not adversely impact the drain.

The Tribunal found the appellants knowingly tiled beyond their assessed watershed, adversely impacting downstream landowners.

The Tribunal upheld the Engineer's recommendations to block the tiles and confirmed the assessments, but ordered that recommendations regarding improvements to the Bateman Drain be handled under a separate Section 78 process rather than forming part of the Saxon Drain by-law.

The plaintiffs advanced funds to a corporation that later went into receivership.

The plaintiffs sought repayment from the individual defendants based on a poorly drafted document entitled 'Agreement to Purchase'.

The court applied the factual matrix approach to contractual interpretation and concluded that the document was intended to be a personal guarantee by the individual defendants for the corporation's debt.

Judgment was granted in favour of the plaintiffs for the outstanding principal and interest.

The appellant property owner appealed a trial judgment that denied him damages for conversion, trespass, and punitive damages, as well as costs, following the respondent Township's unauthorized entry onto his property to remove chattels.

The Court of Appeal upheld the trial judge's dismissal of the substantive damages claims, finding that the chattels had no value and that setting off trespass damages against towing and clean-up costs was appropriate.

However, the Court granted leave to appeal costs, holding that the trial judge erred in depriving the appellant of costs given his overall success at trial.

The appellant was awarded trial and appeal costs.

The appellant appealed a trial judgment finding that she and her husband fraudulently conveyed their matrimonial home to her alone to defeat creditors.

The Court of Appeal upheld the trial judge's findings that the husband had acquired a beneficial interest when the property was previously transferred into joint names to secure a mortgage, and that the subsequent reconveyance to the appellant alone was intended to defeat creditors.

However, the Court allowed the appeal in part regarding interest, reducing the rate from 1% per month to the Courts of Justice Act rate of 3.3% per annum, and changing the start date.

On a summary judgment motion in long-running drainage litigation, the moving defendants sought dismissal on limitation grounds and substantial indemnity costs.

The responding plaintiffs opposed and sought related procedural relief, including amendment of pleadings to particularize nuisance and to plead discoverability and fraudulent concealment.

The court held that the record disclosed multiple genuine issues requiring a trial, including disputed facts regarding design, construction, disclosure obligations, and the interaction of potentially applicable statutory limitation regimes.

Summary judgment was dismissed, leave to further amend the amended statement of claim was granted, and the matter was directed to proceed expeditiously toward trial.

The appellants, automobile insurers, appealed the dismissal of their motions to dismiss class proceedings brought by the respondent insureds.

The insureds claimed that the insurers breached statutory condition 6(7) by reducing their actual cash value payments by the policy deductible when taking title to the salvage in total loss claims.

The motion judge, bound by the Court of Appeal's previous decision in McNaughton, dismissed the insurers' motions.

A five-judge panel of the Court of Appeal held that McNaughton was wrongly decided, as statutory condition 6(7) does not quantify the insurer's payment obligation but merely gives the option to acquire salvage.

The Court overruled McNaughton, allowed the appeals, and dismissed the insureds' actions.

The insured died of carbon monoxide poisoning while repairing his son's motor vehicle in a closed garage with the engine running.

His blood alcohol level exceeded 80mg/100ml.

The appellant insurer denied coverage under an accidental death policy, relying on an exclusion clause for losses caused by 'operating a motor vehicle' while intoxicated.

The trial judge found the insured was not 'operating' the vehicle.

The Court of Appeal upheld the decision, finding that exclusion clauses must be interpreted narrowly and that 'operating' a vehicle, especially in the context of a blood alcohol threshold, focuses on driving rather than repairing.

The plaintiffs in a class action brought motions to quash the defendants' appeals from orders dismissing their Rule 20 and Rule 21 motions.

The plaintiffs argued the orders were interlocutory, not final.

The Court of Appeal held that the orders, which dismissed the motions on a question of law and bound the court to a specific interpretation of the Insurance Act, gave rise to res judicata and were therefore final orders.

The motions to quash were dismissed.