Mario D. Faieta

The plaintiff bank moved for summary judgment to enforce a personal guarantee and to set aside a transfer of a debtor's half-interest in the matrimonial home to his spouse.

The responding defendants argued the demand under the guarantee was unconscionable because the bank denied access to corporate banking information after the guarantor ceased to be a signing officer.

The court held there was no evidence of inequality of bargaining power, predation, or an improvident bargain, and found no genuine issue for trial on unconscionability.

Applying the Fraudulent Conveyances Act, the court found multiple badges of fraud, including a transfer between spouses for nominal consideration shortly after notice of impending demand, and set aside the transfer as a fraudulent conveyance.

Summary judgment was granted with partial indemnity costs.

The defendants moved to strike a second Superior Court action arising from a real estate transaction that had already generated a small claims proceeding, an earlier Superior Court action, and a settlement.

The plaintiff alleged deceit, conspiracy, bad faith conduct, and fraudulent or negligent misrepresentation in relation to the settlement, including against opposing counsel and insurance adjusters.

The court held the pleading contained a complete absence of material facts, failed to plead the constituent elements of the asserted torts, and impermissibly attempted a collateral attack on prior proceedings.

Although strict res judicata did not apply because the causes of action and parties were not identical, the action was found to be scandalous, frivolous, vexatious, and an abuse of process, and was struck without leave to amend.

In a motion concerning monies previously paid into court under an interpleader order following settlement of a motor vehicle accident claim, the court determined competing entitlement claims by a costs creditor and former counsel.

The moving party sought payment of outstanding costs awards with post-judgment interest, while former counsel sought payment of an unpaid settled account.

The court held that although Rule 72.03 does not itself confer authority to determine entitlement, Rule 43.04 permits the court to decide the rights of claimants and direct payment out.

The court ordered payment to the costs creditor and former counsel first, with the balance to the injured claimant, and declined to award costs of the motion.

The applicant, as financial agent for a federal nomination contestant, sought a court order extending the deadline to file a nomination campaign return under the Canada Elections Act.

The court held that s. 478.34 required two mandatory preconditions: a prior application to the Chief Electoral Officer and a court application brought within two weeks of the rejection or expiry of that extension.

Because neither precondition was met, the court found it lacked jurisdiction to grant the requested relief.

The court also rejected any residual common law discretion to extend the statutory deadline, distinguishing earlier authority and relying on subsequent appellate law on statutory time limits.

The plaintiff brought a summary judgment motion arising from a without-cause dismissal after 16 years of service as a specialized national account sales representative in the corrugated packaging and recycling industry.

Applying the reasonable notice factors, the court fixed notice at 16 months, emphasizing the employee’s age, lengthy service, specialized role, and the limited availability of comparable employment in a narrow industry.

The court rejected a claim for an enhanced 2012 bonus based on alleged unilateral changes to bonus criteria, but held that the bonus plan was an integral part of compensation during the notice period and awarded damages for bonus, group insurance benefits, pension contributions, and car allowance.

The court also rejected the employer’s mitigation defence and granted summary judgment for $131,515.35.

The defendants moved to set aside service ex juris and stay a defamation action brought by an Ontario resident against an Israeli newspaper and journalists regarding an article published online.

The court held that Ontario had jurisdiction simpliciter because the alleged defamatory article was read by individuals in Ontario, establishing a presumptive connecting factor through the commission of the tort in the province.

The defendants failed to rebut the presumption of jurisdiction and did not demonstrate that Israel was a clearly more appropriate forum under the forum non conveniens analysis.

The plaintiff’s undertaking to limit damages to reputational harm suffered within Canada, the availability of jury trials in Ontario, and fairness considerations supported Ontario as the proper forum.

The court also rejected the argument that the action constituted an abuse of process due to minimal publication in Ontario.