Maurice J. Neirinck

The appellant appealed an order dismissing his action to enforce a 2008 Quebec judgment in Ontario, which was commenced over eight years later.

The trial judge found the action was barred by the two-year limitation period under the Limitations Act, 2002, rejecting the appellant's arguments regarding promissory estoppel, delayed discoverability, and written acknowledgment of debt.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings of fact and mixed fact and law.

The respondents requested a stay of the applicant's proceeding under Rule 2.1 of the Rules of Civil Procedure, arguing that the applicant was seeking to intervene in a related mortgage enforcement action where the same issues would be resolved.

The court dismissed the request, holding that Rule 2.1 is intended for proceedings that are abusive on their face, not to stay one proceeding pending developments in another.

The court noted that any concerns about redundancy should be raised in the related action or through an ordinary motion for abuse of process or res judicata.

The prosecution alleged that the corporate landlord knowingly permitted premises to be used for the unlawful sale of cannabis contrary to s. 13(1) of the Cannabis Control Act, 2017.

The court held that an agreed statement of facts entered on consent under s. 46(4) of the Provincial Offences Act was binding and conclusively established that no cannabis licence had ever been issued for the business operating at the premises.

On the evidence, including the lease terms, the notice of contravention, and the landlord's own testimony, the court found the mens rea element proven beyond a reasonable doubt.

The court rejected the statutory defence under s. 13(2), holding that letters to the tenant without meaningful enforcement steps, legal action, lock changes, attendance, or police involvement were not reasonable measures in the circumstances.

A conviction was entered.

This decision concerns cross-applications to set aside or enforce two arbitral decisions relating to a commercial property dispute between the Moscone Parties and Edenrock Holdings Inc. and Anthony Marrese.

The Moscone Parties sought to set aside or appeal the arbitral decisions on grounds of procedural unfairness, natural justice, and bias, or in the alternative, to remit the matter to a new arbitrator.

The court dismissed the Moscone Parties’ application, finding no breach of natural justice or procedural fairness, no reasonable apprehension of bias, and that the arbitration agreement precluded any right of appeal.

The application by Edenrock and Marrese to enforce the arbitral decisions was granted.

This decision addresses a claim for partial indemnity costs by intervenors Terence Tse and Best Motoring Fine Cars Ltd. ("Mr. Tse") against Rosemont Management Inc. and McCaul Leasehold Management Limited ("Rosemont").

Mr. Tse sought costs for successfully intervening in the main application and for resisting Rosemont's motion to enforce a settlement.

The court found Rosemont's argument that the costs award was premature to be without merit.

Despite Mr. Tse's initial claim of over $108,000, the court assessed a reasonable award of $50,000 on a partial indemnity basis, payable forthwith by Rosemont to Mr. Tse.

The court clarified its jurisdiction to award costs for both motions, including the intervenor motion whose costs had been deferred by a previous judge.

Rosemont brought an application against Cityzien and Mr. Faraci regarding an abortive real estate transaction and property management dispute.

Rosemont and Cityzien reached a partial settlement, which was negotiated by a Cityzien director without the required unanimous shareholder approval.

Rosemont moved to enforce the settlement, while Mr. Faraci moved to permanently stay the application against him, arguing that the failure to promptly disclose the settlement—which changed the litigation landscape by aligning Rosemont and Cityzien against him—constituted an abuse of process.

The court refused to enforce the settlement, finding it unauthorized and improvident, and granted the stay against Mr. Faraci, holding that the delayed disclosure of the settlement was an abuse of process.

The plaintiff sought to enforce a 2008 Quebec default judgment against the defendants in Ontario.

The defendants raised a two-year limitation period defence under the Limitations Act, 2002.

The plaintiff argued that the action was not prescribed due to acknowledgment of debt, discoverability, or promissory estoppel.

The court found no valid written acknowledgment, rejected the discoverability argument as the plaintiff knew or ought to have known the defendants were domiciled in Ontario and had means to enforce the judgment, and dismissed the promissory estoppel claim due to a lack of evidence of an intention to affect legal relations regarding the limitation period.

The action was dismissed as prescribed, and costs were awarded to the defendants.

The plaintiffs brought a motion under Rule 32.01 of the Rules of Civil Procedure seeking an order to permit their consultant to conduct a Phase Two Environmental Site Assessment of a property.

The plaintiffs argued the assessment was necessary to determine if the property was contaminated, which was relevant to their claims of misrepresentation by the defendants regarding the property's environmental status and to the remedies sought (specific performance with abatement or return of deposit).

The defendants opposed, arguing the plaintiffs had waived an environmental condition in the agreement of purchase and sale and that the motion was delayed and an abuse of process.

The court granted the plaintiffs' motion, finding the inspection necessary and probative for the trier of fact, noting no prejudice to the defendants, and deeming the delay not unreasonable.

The court also provided directions for the parties to agree on a timetable for the inspection, mediation, and trial, and on the terms of the inspection.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) registered against their property, arguing that the plaintiffs failed to make full and fair disclosure on the ex parte motion to obtain the CPL, that there was no triable issue regarding the plaintiffs' claim to an interest in the property, and that equitable factors favored discharge.

The plaintiffs opposed, arguing delay and disputing the defendants' grounds.

The court dismissed the defendants' motion, finding that the defendants' extensive delay in bringing the motion was sufficient grounds for dismissal.

The court further found that the plaintiffs had made full and fair disclosure and that there was a triable issue regarding the plaintiffs' claim for specific performance, with equitable factors favoring the plaintiffs.

Loukia Georgiou, mother of a convicted U.S. fraudster, applied for a declaration of entitlement to CAD$9.3 million, which were subject to a U.S. forfeiture order and frozen in Canada via a Mutual Legal Assistance Treaty request.

She claimed the funds were either held in trust for her or due to her from a commercial agreement.

The court dismissed the application, finding that the applicant failed to establish a valid interest in the funds and that her claim, supported by highly suspicious documents and implausible oral agreements, was a transparent attempt to avoid forfeiture.

The court found the applicant and her son's evidence lacked credibility.

The plaintiff obtained an ex parte Mareva injunction against his brothers and their jointly owned corporations amidst a family business dispute.

On the return motion, the defendants argued the injunction should be set aside due to the plaintiff's failure to provide full and frank disclosure of material facts, including his involvement in prior litigation and his control over a corporate mortgage.

The court agreed that the plaintiff breached his duty of full and frank disclosure and discharged the Mareva injunction over the defendants' personal assets.

However, the court exercised its discretion to grant an alternate interim injunction securing specific corporate cash accounts and real properties pending trial.

The appellant, King Square Limited (KSL), appealed a trial judgment that found it liable to pay further commissions to the respondent mortgage broker, OMJ Mortgage Capital Inc. (OMJ), for additional loan advances obtained from Firm Capital Corporation (FCC).

KSL argued these were new loans made outside the commission agreement's term.

The Court of Appeal, applying a deferential standard of review to contract interpretation, upheld the trial judge's finding that the additional advances were not new loans but rather further advances under the original loan commitment, which was secured during the currency of the commission agreement.

The court found the trial judge's interpretation commercially reasonable and dismissed the appeal.

The Receiver brought a motion seeking approval of its activities, approval of a sales process for two properties, and an order requiring a tenant to disclose tenancy documentation.

The court declined to grant a generic approval of the Receiver's activities, finding it unnecessary.

The court ordered the tenant to comply with its disclosure obligations, rejecting the tenant's confidentiality objections.

The court approved the proposed sales process and listing agreements, subject to conditions including a time-limited sealing order for appraisals and the circulation of redacted listing proposals to the parties.

The plaintiff appealed a Master's order denying the production of a non-party employee's personnel file.

The plaintiff alleged the employee who worked on its machinery was impaired by alcohol and sought the file for relevance.

The Master denied the request based on proportionality and the employee's privacy interests.

The Superior Court dismissed the appeal, finding no error in the Master's balancing of the marginal relevance of the file against the profound intrusion into the non-party employee's sensitive health and privacy information.

The moving parties, Thomas Patrick Farrell and The Midas Investment Corporation, appealed an order dismissing their action concerning the validity of two mortgages and sought a stay of the declaration of validity and enforcement of the mortgages pending the outcome of the appeal.

The court applied the three-part RJR-MacDonald test for stays pending appeal.

While a serious issue was found to exist (though barely), the court determined there would be no irreparable harm to the moving parties and that the balance of convenience did not favour granting a stay.

The motion for a stay was dismissed.

The plaintiffs alleged that the defendant, an officer of their corporation, fraudulently and without authorization registered two mortgages against their properties.

They also sued the lawyer who registered the mortgages for negligence and the mortgagees for relying on the mortgages despite alleged red flags.

The court dismissed the action, finding that the officer had actual authority to bind the corporation under its by-laws, the plaintiff was aware of and benefited from the mortgages as part of a scheme to avoid foreign creditors, the lawyer met the standard of care, and the mortgagees were protected by the indoor management rule and the Land Titles Act.

Following a trial where the plaintiff was awarded $741,000 in damages, the plaintiff sought costs on a substantial indemnity basis.

The court denied substantial indemnity costs prior to the plaintiff's offer to settle, finding that the defendant's bad faith did not amount to egregious conduct.

However, the court awarded substantial indemnity costs from the date of the offer to settle, as the plaintiff obtained a judgment more favourable than its offer.

Costs were fixed at $159,666.62, with reductions made for disproportionate time spent by senior counsel.

The plaintiff mortgage broker, OMJ Mortgage Capital Inc. (OMJ), sued the defendant, King Square Limited (KSL), for commissions on three loans extended by Firm Capital Corporation (FCC).

OMJ claimed commissions on two loans to KSL and one loan to King Square Hotel Corporation (KSHC), arguing they were further advances under an original loan commitment or covered by the holdover period of their commission agreement.

KSL contended the loans were new and outside the agreement's terms, and that it was not liable for a loan to KSHC, a separate entity.

The court found the two loans to KSL were further advances under the original commitment, entitling OMJ to commissions, and that KSL breached its duty of good faith by not disclosing these advances.

However, the court dismissed OMJ's claim for commission on the KSHC loan, finding it was a distinct loan not covered by the agreement's terms or the definition of "Borrower."

The applicants sought the partition and sale of two industrial properties owned by corporations in which they held shares, following a breakdown in the business relationship with the respondents.

The respondents argued that the applicants had no interest in the land because the properties were owned by the corporations.

The court dismissed the application, holding that shareholders do not have a possessory interest in property owned by a corporation, and therefore the applicants had no prima facie right to partition under the Partition Act.

This was a costs endorsement following an insurance coverage trial in which the defendant insurer was successful in having the first action dismissed entirely.

The court held that costs were to be fixed under s. 131 of the Courts of Justice Act and r. 57.01(1) of the Rules of Civil Procedure, guided by fairness, reasonableness, indemnity, reasonable expectations, and the complexity and importance of the issues.

Although the insurer’s bill included work relating to a second action and an earlier related action, the court found 65% of the total bill properly attributable to the first action.

No additional deductions were warranted for an unproceeded summary judgment motion, settlement with the receiver, or an expert report.

Costs of $179,372.03 inclusive of HST and disbursements were awarded on a partial indemnity scale.