Mark Hartman

The plaintiff bank brought a motion for summary judgment to recover amounts owing under a business credit agreement and personal guarantees.

The defendants asserted a limitation period defence and argued the bank improperly charged interest under the agreement.

The court held that payments made to the account constituted acknowledgments of liability under s. 13 of the Limitations Act, thereby restarting the limitation period.

The court also found the credit documentation authorized the bank to increase the interest rate upon default and rejected the alleged oral forbearance agreement.

Summary judgment was granted to the bank and the defendants’ counterclaim was dismissed.

The applicant bank brought an application under s. 140 of the Courts of Justice Act seeking an order declaring the respondent a vexatious litigant.

The evidence showed that the respondent repeatedly commenced motions, applications, and appeals related to mortgage enforcement proceedings and related matters, often relitigating issues already decided, attempting to represent another individual without standing, and disregarding court orders restricting further proceedings.

Numerous proceedings were initiated in multiple courts and tribunals, many of which were not pursued or were dismissed, and several outstanding costs orders remained unpaid.

Applying the principles in Re Lang Michener et al and Fabian et al, the court held that the respondent’s persistent litigation conduct constituted vexatious proceedings.

The court declared the respondent a vexatious litigant, imposed a requirement that she obtain leave of a Superior Court judge before instituting or continuing any court proceeding, and dismissed a related action she had commenced against the bank, its solicitors, and a property manager.

The defendant moved for security for costs under Rule 56.01(1)(a) and (e) of the Rules of Civil Procedure on the basis that the plaintiffs were non-residents of Ontario and allegedly lacked assets in the jurisdiction.

The court found the claim—alleging an improvident sale of property at auction for substantially less than a prior offer and appraised value—was not frivolous or vexatious.

Although the plaintiffs asserted that assets in Texas owned through a corporation were sufficient to satisfy any costs award, the court concluded that enforcement against those assets would not be straightforward because the property was owned by a non-resident corporation rather than the plaintiffs directly.

The court therefore ordered security for costs with conditions designed to preserve the corporate shares and underlying property as potential security for any future costs award.

Following dismissal of a summary judgment motion brought by the defendant, the court determined the appropriate costs award for the successful plaintiff.

The plaintiff sought substantial indemnity costs relying on an offer to settle and the complexity of issues involving trust funds under the Construction Lien Act and limitation periods.

The court held the offer did not meet the criteria of Rule 49.10 and found no unreasonable conduct justifying substantial indemnity costs.

Emphasizing proportionality, reasonableness, and the amount in dispute, the court reduced the requested amount.

Costs were awarded to the successful plaintiff in the sum of $10,500 inclusive of disbursements and HST.

A mortgagee brought a motion for summary judgment for possession and recovery of monies owing under a mortgage after a restraint order under the Controlled Drugs and Substances Act was registered on title to the mortgaged property.

The borrower argued the restraint order was analogous to a Mareva injunction and did not constitute a lien or encumbrance triggering default under the mortgage.

The court held that a restraint order under the Act constitutes both an encumbrance and an attachment within the broad contractual definition of “lien” in the mortgage’s standard charge terms.

As the order placed the property under the control of the justice system pending potential forfeiture, its registration amounted to a default under the mortgage.

The mortgagee was therefore entitled to summary judgment.