Michael A. Katzman

The defendant insurer brought a Rule 21 motion to dismiss the plaintiffs' action, which arose after a house fire destroyed a mortgaged property on which the plaintiffs held a registered mortgage.

The insurance policy named a different entity (Community Trust Company) as the mortgagee under the standard mortgage clause, not the plaintiffs.

The court declined to strike the contract claim, finding no binding Ontario authority that the standard mortgage clause is limited strictly to the named mortgagee, and noting language ambiguity identified in out-of-province jurisprudence.

The court also found the rectification claim was properly pleaded, as the statement of claim identified the parties' common and continuing intention to protect the actual registered mortgagee.

The unjust enrichment claim was likewise permitted to continue, with case management directed to coordinate with a companion action.

All three branches of the Rule 21 motion were dismissed.

A landlord sought damages against a tenant and personal guarantors for breach of a commercial lease at 530 Yonge Street, Toronto.

The tenant defaulted on rent payments beginning in February 2020, and the lease was terminated in September 2023.

The court determined damages for unpaid rent to the end of the lease term, accounting for mitigation efforts through re-leasing portions of the space.

The court awarded total damages of $2,097,249.16 including mitigation costs and HST, plus interest at 12.20% per annum and legal costs of $24,921.86.

The plaintiff sought summary judgment on a mortgage shortfall claim against the defendant following the defendant's default on mortgage payments beginning in November 2023.

The defendant owned a four-unit apartment building that was subject to a first mortgage of approximately $1.5 million and a second mortgage of $180,000 held by the plaintiff.

After the defendant failed to make payments, the plaintiff made payments to the first mortgagee, obtained possession, and sold the property under power of sale for $1.935 million.

The sale proceeds, after deducting the first mortgage, expenses, and other costs, resulted in a shortfall of $118,325.92.

The defendant opposed the summary judgment motion, challenging the quantum and raising unsubstantiated allegations of intentional value depression.

The court granted summary judgment in favor of the plaintiff.

The plaintiff, a title insurance company, brought a motion for default judgment against multiple defendants in a mortgage fraud case.

The defendants obtained fraudulent mortgage proceeds of $585,700 by falsely representing themselves as property owners.

The defendants failed to participate in the proceedings.

The court granted default judgment, finding the defendants liable for fraud, conspiracy to defraud, unjust enrichment, and breaches of the Fraudulent Conveyances Act and Assignment and Preferences Act.

The court awarded compensatory damages, punitive damages, and substantial indemnity costs.

The appellant, 1461043 Ontario Limited c.o.b. as Nuvo Iron, appealed the dismissal of its motion to vary a default judgment to add declarations of intentional breach of trust and that the judgment survived the respondents’ discharge from bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The Court of Appeal upheld the motion judge’s decision, finding no basis in the record for the declarations sought and confirming that a mere breach of trust, even if negligent or incompetent, is insufficient to support a such an order.

The appeal was dismissed with costs to the respondents.

The plaintiff, an insurance company, sought to extend a Mareva Injunction against multiple defendants involved in a sophisticated mortgage fraud scheme.

The plaintiff had previously issued a loss payment under a title insurance policy after a fraudulent mortgage was declared void.

The Mareva Injunction, initially granted ex parte, froze accounts of several defendants who received fraudulent mortgage proceeds.

The court found a strong prima facie case of fraud, sufficient inference of risk of dissipation, and that the balance of convenience favored extending the injunction.

The court also addressed the needs of a self-represented defendant, Xuan Dieu Vy Nguyen, who opposed the motion, by ensuring access to living expenses and directing an oral hearing for future default judgment motions to allow her to present her case.

The defendants moved to transfer a complex civil action from Perth to Toronto and to assign it for case management.

The court found that the Perth courthouse lacked the necessary judicial resources to manage the case effectively, as evidenced by delays in hearing the defendants' motions.

Considering factors under Rule 13.1.02, including convenience for parties and witnesses, and the availability of case management facilities, the court determined that Toronto was a "clearly superior" venue.

The motion to transfer was granted, and the action was assigned for case management due to its complexity and anticipated need for court intervention.

The appellant, Emad Beshay, appealed an order dismissing his action for delay under Rule 48.14(7)(a) of the Rules of Civil Procedure.

The action, commenced in December 2016 for breach of contract and misrepresentation related to a business purchase, had seen no significant progress for over five years.

The motion judge rejected the appellant's explanations for delay, including family deaths, mental illness, and financial problems, finding them unsupported by cogent evidence and contradicted by his business activities.

The motion judge also found the respondents would suffer prejudice due to fading memories of witnesses and lost banking records.

The Court of Appeal dismissed the appeal, affirming the motion judge's discretionary decision and finding no palpable and overriding errors in her assessment of the evidence or application of the two-part test for delay dismissal (acceptable explanation and no non-compensable prejudice).

The plaintiff, Chicago Title Insurance Company, brought an ex parte motion for a Mareva injunction against multiple defendants involved in a mortgage fraud scheme.

The court found a strong prima facie case of mortgage fraud, evidence that the defendants possessed assets in the jurisdiction (bank accounts containing fraudulent proceeds), and a real risk that these assets would be dissipated to avoid judgment.

The Mareva injunction was granted on an ex parte basis, limited to the monetary amounts received by each defendant, with a ten-day duration, and an undertaking as to damages provided by the plaintiff.

This case involves a Companies' Creditors Arrangement Act (CCAA) proceeding where the Applicants sought approval of a Sales and Investment Solicitation Process (SISP) including a stalking horse bid.

Green Acre Capital LP, a minority shareholder and creditor, opposed the SISP and brought a cross-motion to replace the previously approved Debtor-in-Possession (DIP) financing facility with an alternative one.

The court approved the SISP, finding it broad enough to explore various restructuring options beyond just a sale, and dismissed Green Acre's cross-motion, emphasizing the need to minimize instability by not replacing a recently approved DIP facility for minor financial benefits.

The plaintiff, Chicago Title Insurance Company, sought an interim ex parte Norwich order requiring non-party financial institutions to disclose extensive financial records of the defendants, who were involved in a fraudulent mortgage scheme.

The court dismissed the motion, finding that a second Norwich order was not necessary as the principal wrongdoer and other recipients of funds were already identified and named as defendants, allowing for discovery through the Rules of Civil Procedure.

The court emphasized that Norwich orders are extraordinary remedies not to be used as a substitute for discovery, especially when the identity of wrongdoers is known and litigation has commenced.

The plaintiff, On Deck Capital, Inc., brought a motion for default judgment against the defendant, Morley Barnaby, in a simplified procedure action.

The claim arose from a guarantee provided by the defendant for loans made by the plaintiff's predecessor to a company that subsequently declared bankruptcy.

The defendant was noted in default for failing to defend the action.

The court applied the test for default judgment, finding that the deemed admissions of fact from the Statement of Claim, combined with the plaintiff's evidence, entitled the plaintiff to judgment.

The motion was granted, awarding the plaintiff $95,208.75 plus contractual interest and partial indemnity costs.

The plaintiff moved for an order to extend the time to set the matter down for trial, which the defendants opposed, seeking dismissal for delay.

The action, arising from a business purchase, had been dormant for over five years.

The court dismissed the plaintiff's motion and the action, finding the plaintiff's explanations for delay (family deaths, wife's mental health, own mental health, financial strain, COVID-19 impact) unacceptable due to lack of cogent evidence and the plaintiff's apparent financial capacity and other business activities.

The court also found actual prejudice to the defendants due to faded witness memories and unavailable banking records, emphasizing the importance of respecting procedural timelines for timely access to justice.

The plaintiff title insurance company brought a motion to extend the time to serve its Statement of Claim, amend the claim to add a new defendant, extend an existing Norwich Order to that new defendant, and obtain a Mareva injunction against all defendants in a mortgage fraud action.

The court granted the extension of time, the amendment, and the Norwich Order, finding the plaintiff established a bona fide claim and the necessity of disclosure to trace fraudulent mortgage proceeds.

The request for a Mareva injunction was adjourned pending the completion of the plaintiff's investigations.

The Ontario Securities Commission (OSC) appealed a motion judge's decision to strike its fraudulent conveyance claims under section 2 of the Fraudulent Conveyance Act.

The motion judge had found the pleadings insufficient to establish standing for subsequent creditors.

The Court of Appeal clarified that subsequent creditors can challenge a transfer if it was made with the general intent to defraud creditors, whether present or future.

The Court found the OSC's pleadings contained sufficient "badges of fraud" to support the claim, including the transfer of property for no consideration, a close relationship between parties, and an intent to avoid future business liabilities.

The appeal was allowed, reinstating the fraudulent conveyance claims regarding both the property transfer and subsequent payments.

This is an appeal from a judgment ordering the sale of a property under the Partition Act.

The Court of Appeal addressed a preliminary jurisdictional issue, noting that section 7 of the Partition Act stipulates appeals from orders made under the Act lie to the Divisional Court.

Despite the appellants' argument that the Court of Appeal had jurisdiction due to intertwined issues, and the respondents' lack of objection, the court held that parties cannot confer jurisdiction by agreement.

The Court found the judgment squarely fell under the Partition Act, and therefore, the Court of Appeal lacked jurisdiction.

The appeal was quashed, and the appellants were ordered to pay costs.

This appeal concerned the interpretation of a commercial lease termination provision, specifically whether proposed remodelling rendered continued possession by the tenant "impracticable." The motion judge had granted summary judgment to the landlord, finding the renovations bona fide and that the premises would cease to exist.

The Court of Appeal found that the motion judge erred in construing the termination provision too narrowly and in isolation from other lease provisions, failing to consider whether the tenant could remain in possession during renovations.

The appeal was allowed, the summary judgment and costs order were set aside, and the action was remitted to the Superior Court for continuation.

The moving parties sought an extension of time to file a notice of appeal from a lower court order.

The motion was brought six days after the deadline.

The court applied the four-factor test for granting an extension of time: intention to appeal within the period, reasonable explanation for delay, arguable merits, and lack of prejudice to the responding parties.

The court found that the moving parties had a strong contemplation of appeal, a short and reasonable delay, and arguable issues regarding beneficial interests in the property.

No prejudice was found as the original order for sale was not automatically stayed.

The extension was granted on strict terms, including deadlines for filing and perfecting the appeal, and expedited hearing.

Despite granting the extension, the court awarded costs to the responding parties due to deficiencies in the moving parties' motion materials.

The tenant plaintiffs brought an action to prevent the new landlord from terminating their commercial lease.

The landlord counterclaimed and brought a motion for summary judgment, arguing it validly exercised the 'termination for remodelling' clause in the lease.

The tenant argued the landlord acted in bad faith and was estopped from terminating early due to a prior lease renewal.

The court found the landlord properly invoked the termination clause, as the proposed demolition and remodelling would render the tenant's continued possession impracticable.

The court found no evidence of bad faith or promissory estoppel.

The action was dismissed and the counterclaim allowed.

The plaintiffs sought production of banking, income tax, and municipal records from the defendants in two civil actions alleging conversion of millions of dollars in assets.

A preliminary motion by the defendants to strike the plaintiffs' extensive affidavit evidence was partially successful, but the court decided to proceed with the main production motion, ignoring irrelevant evidence.

The court granted the production order for tax records and CIBC banking records, finding them relevant to the alleged breach of fiduciary duty and fraud, and that the need for information outweighed privacy concerns.

Municipal and county records were produced by consent.