Martin Z. Black

Two applications were brought regarding the validity of a $689,000 mortgage registered against two properties owned by the applicant.

The estate of the deceased chargee claimed the mortgage was valid and secured funds allegedly stolen by the applicant's parents, while the applicant claimed she never authorized or knew about the mortgage and that her signature was forged.

The court found that material facts surrounding the execution of the mortgage were in dispute, requiring findings of credibility and potentially expert evidence.

Consequently, the court adjourned the applications and directed that the issues proceed to trial pursuant to Rule 38.10(1)(b) of the Rules of Civil Procedure.

The defendants brought a motion to discharge a claim for lien and certificate of action, and for security for costs.

The plaintiff brought a cross-motion.

The court ordered the claim for lien and certificate of action discharged as they were registered late.

The court also ordered the plaintiff to post security for costs in the amount of $27,500.

The plaintiff was granted leave to maintain the action under the Business Names Act.

Costs of the motions were awarded to the defendants in the amount of $15,000.

The plaintiff moved for summary judgment against the individual guarantors of a commercial mortgage granted by the corporate defendant.

The guarantors argued the corporate defendant was not in default because the plaintiff had executed a postponement of debt agreement in favour of the Business Development Bank of Canada (BDC).

The court found that the clear terms of the postponement agreement meant no amounts were presently owing to the plaintiff until the BDC loan is repaid in 2043.

As the corporate borrower was not in default, the guarantees could not be enforced.

The court granted a 'boomerang' summary judgment dismissing the plaintiff's claim against the guarantors.

The applicant brought a motion to enforce undertakings and refusals from cross-examinations and for leave to file a supplementary affidavit in the context of an oppression application.

The court held that questions regarding the existence of directors' and officers' insurance policies need not be answered, as the rules compelling disclosure of insurance in actions do not apply to applications where discovery is not available.

However, questions regarding the corporation's financial statements were ordered to be answered.

The court also granted the applicant leave to file a supplementary affidavit based on newly disclosed financial information.

The applicant sought to prove a lost will where the original could not be found after the testator's death.

The next-of-kin respondents argued that the presumption of intentional destruction by the testator had not been rebutted, which would result in an intestacy.

The court reviewed the testator's organized nature, her consistent statements affirming the sole beneficiary, and her understanding of the consequences of intestacy.

The court found sufficient evidence to rebut the presumption of revocation and admitted a copy of the will to probate.

The appellants appealed an order declaring a family trust invalid and vesting its assets in the respondent Trustee in Bankruptcy.

The respondent moved to dismiss the appeals, and the alleged trustee of the trust brought a cross-motion.

The Court of Appeal found significant irregularities regarding the notice provided for the original hearing, noting that the hearing proceeded in the absence of the undischarged bankrupt and any representative of the trust.

The court set aside the original order and remitted the matter for a new hearing in the Superior Court of Justice to ensure procedural fairness.

The plaintiff corporation brought a motion for summary judgment to enforce a mortgage against the defendant corporation.

The dispute involved two brothers, one acting as the plaintiff's director under a power of attorney from their father, and the other as the sole shareholder of the defendant.

The defendant argued that an oral agreement precluded enforcement and that the father lacked capacity to grant the power of attorney authorizing the action.

The court rejected the oral agreement defence based on the Statute of Frauds and the parol evidence rule.

However, finding a genuine issue regarding the father's capacity, the court stayed the motion for 30 days to allow the defendant's principal to commence proceedings under the Substitute Decisions Act to challenge the power of attorney.

The plaintiffs discontinued their main action, and the defendants subsequently abandoned their counterclaim and third party claim.

The defendants brought a motion for costs of the main action, arguing the plaintiffs' claim was devoid of merit and that the counterclaim and third party claim were a natural consequence.

The court found the main action was not self-evidently frivolous and held that each party should be entitled to recover the costs of defending the proceeding launched against them on a partial indemnity scale.

The calculation of costs was referred for assessment.

An employee of the respondent defrauded the company by preparing cheques payable to a variation of a legitimate supplier's name and depositing them into his own account at the appellant bank.

The trial judge found the appellant bank liable for conversion and ordered it to pay damages.

On appeal, the appellant argued that conversion requires blameworthy conduct, and raised defences under the Bills of Exchange Act, including the fictitious payee and holder in due course defences.

The Court of Appeal dismissed the appeal, affirming that conversion is a tort of strict liability and that the statutory defences did not apply because the drawer intended to pay a legitimate debt and the cheques were not delivered by an authorized party.

The debtor filed an assignment in bankruptcy while owning a motor vehicle subject to an unperfected conditional sales contract held by the appellant.

The appellant filed a proof of claim for the balance owing, which the trustee disallowed as a secured claim but allowed as an unsecured claim.

The appellant appealed, arguing it was entitled to priority over the trustee for the first $5,000 of the vehicle's value under the motor vehicle exemption in s. 2.6 of the Execution Act.

The Court of Appeal dismissed the appeal, holding that the plain wording of s. 2.6 provides an exemption only for a motor vehicle not exceeding $5,000 in value, and does not exempt the first $5,000 of a vehicle worth more than that amount.

The appellant appealed a decision finding that a competing tender contained only minor irregularities that could be corrected within 48 hours under the municipal purchasing bylaw.

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

The cross-appeal was withdrawn, and costs were awarded to the respondent municipality.