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 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.