Shawna M. Sosnovich

A defendant brought a motion to dismiss an action alleging fraudulent conveyance and to discharge a certificate of pending litigation registered against a matrimonial home.

The moving party argued that the claim was barred by a prior full and final release executed after settlement of related debts.

The court held that interpretation of the release required consideration of the surrounding circumstances and could not be determined without a trial, so dismissal of the action was refused.

However, the court found that the release was a material fact that should have been disclosed when leave to register the certificate of pending litigation was obtained.

Because of this non-disclosure, the certificate of pending litigation was discharged.

The plaintiff bank brought a motion for summary judgment to recover outstanding indebtedness under a revolving demand credit facility extended to a corporate borrower.

Corporate and individual defendants had executed guarantees securing the facility.

The individual guarantors argued the debt arose from a new loan issued in 2009 and therefore fell outside their 2002 guarantees, asserting the original loan had been paid off in 2008.

The court found the evidence established the facility was never extinguished and that the 2009 agreement merely reduced the credit limit rather than creating a new loan.

Given the guarantees covered all present or future indebtedness, the guarantors remained liable and summary judgment was granted.

The appellant appealed the dismissal of its counterclaim for professional negligence and breach of contract against the respondent accounting firm.

The motion judge dismissed the counterclaim on a summary judgment motion because the appellant failed to provide direct evidence, relying instead on an affidavit based on information and belief.

The respondent cross-appealed the motion judge's finding that there was a genuine issue for trial regarding the timing of payment of its fees.

The Court of Appeal dismissed the appeal and allowed the cross-appeal, finding no genuine issue for trial regarding the fees and granting summary judgment to the respondent.

The appellant appealed an order dismissing his motion to set aside a consent order that had amended a default judgment against him to include declarations of fraud.

The bank had originally obtained default judgment for a debt based on a personal guarantee, without pleading fraud.

Later, the bank moved under Rule 59.06 to add declarations of fraud, to which the appellant consented based on his solicitor's misunderstanding.

The Court of Appeal allowed the appeal, finding that the motion judge misapprehended the evidence regarding the solicitor's mistake and the bank's reliance on the appellant's representations.

The Court also held that Rule 59.06 cannot be used to amend a judgment to grant relief that was never sought in the original pleadings.

The moving party brought a motion for security for costs of an appeal under rule 61.06(1).

The responding party, who had made a consumer proposal in bankruptcy, was appealing a decision that refused to set aside a consent order converting a default judgment into a judgment in fraud.

The responding party argued he consented to the order due to his former solicitor's misunderstanding and failure to explain the consequences.

The Court of Appeal dismissed the motion, finding that although the responding party was impecunious, his appeal was not plainly devoid of merit and he should not be deprived of the opportunity to have his claim adjudicated.