Marvin Barry Shifman

Theriault Holdings Inc. moved to dismiss a lien action brought by NDF Financial Inc. and for payment out of lien security posted into court.

NDF did not appear or oppose the motion.

The court granted the motion, discharging NDF's lien, dismissing the action, and ordering payment of the lien security to Theriault.

The court found that NDF had breached multiple interlocutory orders and completely disengaged from the litigation.

The court rejected Theriault's reliance on subrule 24.01(2) of the Rules of Civil Procedure as inapplicable to lien actions, but granted dismissal under section 47 of the Construction Act on the basis of NDF's breach of court orders.

The court held that the lien security should be returned to the party who posted it, as contemplated by the Construction Act, and that Ms. Tomas's separate dispute with Theriault regarding the power of sale proceedings was not properly before the court in this lien action.

The plaintiff, Yan Qing (Eva) Chen, brought an unopposed motion for default judgment against the defendants, Ji Cai Sun and Tai Ji International Auctions Corp., seeking damages for trespass, conversion, and fraud related to the theft of antiques.

The plaintiff also sought an order to correct a misnomer in the style of cause, prejudgment and post-judgment interest, and a finding that the debt was a result of fraud under section 178 of the Bankruptcy and Insolvency Act.

The court granted the plaintiff's requests, finding the defendants liable based on deemed admissions and affidavit evidence, and awarded substantial indemnity costs.

The offender, Nam Nguyen, pleaded guilty to aggravated assault.

The victim sustained severe injuries including a broken jaw requiring surgery and metal plates.

The Crown sought an 18-24 month custodial sentence, while the defence sought a conditional sentence.

The court considered the principles of sentencing, including denunciation, deterrence, rehabilitation, and restraint, particularly for a youthful first offender.

Despite the seriousness of the offence and the victim's injuries, the court found that a conditional sentence was appropriate given the offender's lack of prior record, employment, and low risk of re-offending, and that it could adequately meet sentencing objectives.

The appellant appealed a Small Claims Court decision striking his defence and granting judgment to the respondent for a credit card debt of $10,840.17.

The appellant argued that the respondent increased his credit limit without his express consent, contrary to regulations under the Bank Act.

The Divisional Court dismissed the appeal, finding the Deputy Judge did not err in accepting the respondent's evidence that the appellant had authorized the increases via internet and telephone banking.

The defence had no meaningful chance of success at trial.

Following the dismissal of the defendants' appeal from a $4,000 Small Claims Court judgment, the successful plaintiff sought costs of up to $7,691 on a substantial indemnity scale.

The court rejected the request for substantial indemnity costs, noting that the appeal was not frivolous.

The court also found the requested partial indemnity costs of $6,223.87 to be disproportionate to the $4,000 amount at stake.

Applying the principle that costs must be fair and reasonable for the unsuccessful party to pay, the court fixed costs at $2,500 plus disbursements.

The appellants appealed a trial judgment finding them liable under s. 50 of the Commercial Tenancies Act for the fraudulent removal of goods to defeat the respondent landlord's claim for rent arrears.

The trial judge awarded double the value of the removed goods, damages for the vacated premises, and solicitor-client costs.

The Court of Appeal dismissed the appeal, finding sufficient circumstantial evidence to support the trial judge's findings of responsibility and fraudulent intent, and no basis to interfere with the damages or costs awards.