Michael G. McQuade

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.

This costs endorsement addresses the plaintiff Belcap Management Inc.'s request for costs following the defendant Marjorie Dixon's withdrawal of a motion.

Dixon had sought to refer the action to an Associate Judge for trial and case management alongside related lien actions, arguing that all matters arising from the same construction project should be managed together.

However, the related lien actions settled, rendering Dixon's motion moot.

Belcap sought $8,503 in partial indemnity costs, while Dixon offered to withdraw her motion on a without-costs basis.

The court, exercising its discretion under section 131(1) of the Courts of Justice Act and Rule 57, awarded Belcap $3,000, noting that while the underlying motion was moot, it was likely Dixon's motion would have been successful had it been argued.

The proposed intervenors, who are 40% shareholders of the respondent corporation, brought a motion for leave to intervene in applications concerning the management and interests of a residential property.

They alleged that a settlement reached by the respondent's representative was done without their required consent under a unanimous shareholders agreement.

The applicants objected based on the indoor management rule.

The court granted the motion to intervene, finding that the proposed intervenors had an interest in the proceeding and could be prejudiced by the outcome.

This urgent motion before the Court of Appeal addressed whether a non-party, John Kavanagh, had an automatic right to appeal or should be granted leave to appeal two approval and vesting orders related to the sale of properties in a mortgage enforcement and insolvency proceeding.

The Receiver brought the motion to prevent automatic stays of the property sales.

The court found no automatic right of appeal under s. 193(c) of the Bankruptcy and Insolvency Act (BIA) because the orders were procedural and no loss exceeding $10,000 was demonstrated.

The court also denied leave to appeal under s. 193(e) of the BIA, concluding that the issues raised were not of general importance, lacked prima facie merit, and granting leave would unduly hinder the insolvency proceedings.

Consequently, Kavanagh's notices of appeal were quashed, and his motions for leave to appeal were dismissed, ensuring the property sales could proceed without automatic stays.

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.

This is a costs endorsement following an appeal from a Superior Court judgment.

The Court of Appeal invited the parties to make written submissions on costs after issuing reasons on May 23, 2019.

The parties were unable to reach agreement and submitted written arguments.

The Court awarded costs to the appellant against one of the respondents.

The appellant leased commercial premises from the respondent with a right to renew for five years.

The appellant sublet the premises to a third party without reserving the last day of the head lease term.

When the appellant attempted to exercise its renewal option, the respondent claimed the appellant had forfeited its rights through an assignment.

The application judge failed to resolve this central issue and instead found a breach of contract with no damages.

The Court of Appeal allowed the appeal, holding that section 3 of the Commercial Tenancies Act permits a sublease even without reserving the last day of the head lease term, provided there is sufficient evidence that the parties did not intend an assignment.

The sublease language clearly demonstrated the parties' intent to preserve the appellant's renewal rights.

This costs endorsement followed a discharge motion for an interim receiver.

The Interim Receiver and Fasken, Martineau DuMoulin LLP sought substantial indemnity costs against Nyaz Jethwani, who had opposed the discharge and fee approvals.

The court found Jethwani was not a public interest litigant and was responsible for costs incurred due to his opposition.

However, the offers to settle did not meet Rule 49 requirements, and Jethwani's conduct, while causing unnecessary costs, was not reprehensible enough for substantial indemnity.

The court awarded partial indemnity costs to the Interim Receiver ($75,000) and Faskens ($54,000), plus $2,500 each for the costs motion itself.

The applicant, a former tenant, sought to enforce a lease renewal option and claim damages for breach of contract against the landlord and sub-tenant.

The court found that both the landlord and sub-tenant breached their duties of good faith and contractual obligations to the applicant regarding the renewal.

However, no monetary damages were awarded to the applicant because the fair market rent for the renewed term would have resulted in a break-even scenario.

The application for specific enforcement was denied, and the applicant was ordered to return a $10,000 deposit to the sub-tenant.

No costs were awarded due to the mixed outcome.

The appellant trustee in bankruptcy appealed a trial judge's decision allowing the secured claims of a nominee company controlled by the respondent.

The appellant argued that the claims were barred by a full and final mutual release previously executed by the respondent.

The Court of Appeal allowed the appeal, finding that the trial judge made an extricable error of law by failing to consider the release as a whole.

Properly interpreted, the release captured successor corporations under the respondent's control, including the nominee company, and barred the claims.

The Trustee in bankruptcy appealed the trial judge's refusal to set aside transactions arising from a settlement between an investor and a real estate developer.

The Trustee argued the payments and mortgages were transfers at undervalue, unjust preferences, fraudulent conveyances, oppressive, and an unjust enrichment.

The Court of Appeal dismissed the appeal, finding the settlement was supported by adequate consideration (forbearance from suit), the parties were at arm's length, and there was no intent to defraud creditors.

The investor's cross-appeal regarding a $471,000 payment found to be a fraudulent conveyance was also dismissed.

The appellant, acting as trustee in bankruptcy for two creditors, appealed the trial judge's partial disallowance of claims advanced in the bankruptcy of a development company.

The Court of Appeal allowed the appeal in part, correcting the quantum of an unsecured claim from $420,000 to $457,600 and ordering interest to be calculated from the date of each individual advance rather than the final advance.

The court dismissed the appeal regarding the disallowance of certain third-party payments, finding the trial judge applied the correct standard of proof.

The court also upheld the application of the Courts of Justice Act for interest on an unjust enrichment claim, but varied the end date for interest accrual to the date of receivership.

A cross-appeal by another creditor was dismissed.

This case involved a dispute over a commercial condominium Agreement of Purchase and Sale.

The Purchaser failed to close on the fixed date, requesting extensions which the Vendor refused.

The Purchaser sued for specific performance and relief from forfeiture, moving for a certificate of pending litigation.

The Vendor sued for a declaration that the agreement was terminated and forfeiture of deposits, moving for summary judgment.

The court dismissed the Purchaser's action and motion, granting the Vendor's summary judgment.

It held that the duty of good faith in a discreet real estate transaction does not override strict contractual terms regarding closing dates.

The court ordered forfeiture of the $40,000 in deposits but ordered the return of $31,999.50 paid on account of interim closing funds, distinguishing between true deposits and payments on account.

The defendant brought a motion to compel a representative of the plaintiffs to answer an undertaking arising from an examination for discovery regarding which Vitullo family member or related entity held an interest in a real estate brokerage connected to the transaction at issue.

The underlying action involved a claim for specific performance of a real estate transaction and a counterclaim alleging undisclosed conflicts of interest involving the broker and familial relationships.

The moving party argued the shareholding information was relevant to a pleaded conflict-of-interest allegation.

The responding party contended the question was irrelevant and that no undertaking had been given.

The court held the information was relevant to the pleadings and ordered the witness to provide the requested undertaking.

The court-appointed receiver appealed a motion judge's decision denying $30,000 in receiver fees and $20,000 in legal costs.

These fees were incurred when the receiver brought an unsuccessful motion to cancel an approved auction process in favour of a private sale.

The Court of Appeal dismissed the appeal, finding that while a receiver's business decisions are owed deference, the receiver still bears the burden of proving its fees are fair and reasonable.

The motion judge correctly concluded that the receiver's motion to abort the auction was ill-considered and that safeguarding the integrity of the sale process was paramount.

The respondent invested $57,000 in a fraudulent investment scheme through the appellant and a third party.

The trial judge found the appellant liable for the loss based on a breach of constructive trust as a trustee de son tort.

The Court of Appeal allowed the appeal, holding that the trial judge erred by deciding liability on a theory that was not pleaded.

Furthermore, the Court found no evidentiary basis for a breach of trust, as the appellant did not guarantee the investment or participate in any wrongdoing.

The plaintiff private mortgage lender sought summary judgment in four actions for principal, interest, renewal fees, and other charges under several short‑term mortgage agreements guaranteed by individual defendants.

The parties admitted the principal and contractual interest owing, and the court granted partial summary judgment for those amounts.

Disputed issues included recurring mortgage renewal fees, a daily fee of $100 under one loan, and legal fees claimed by the lender.

The court held there was no contractual basis for recurring monthly renewal fees beyond the single agreed extension, reduced claimed legal fees to a reasonable amount, and found the $100 daily fee would exceed the criminal interest rate under s. 347 of the Criminal Code or was otherwise unconscionable under the Unconscionable Transactions Relief Act.

The court therefore limited recovery to principal, agreed interest, and certain reasonable fees.

The appellants appealed a trial judgment finding them liable either as guarantors or on a promise to purchase promissory notes.

The Court of Appeal dismissed the appeal, agreeing with the trial judge's interpretation of the agreement based on the context and intention of the parties.

The court also refused to interfere with the trial judge's costs order and awarded costs of the appeal to the respondents.

The court-appointed receiver brought a motion to approve a private agreement of purchase and sale for a residential property and to halt a previously court-approved auction scheduled to take place in four days.

The second mortgagee opposed the motion, arguing the auction should proceed.

The court dismissed the motion, applying the Soundair principles and finding that accepting a pre-emptive offer and halting the auction at this late stage would damage the integrity of the sales process.

The trustee in bankruptcy for several related real estate development companies brought applications to determine the priority of claims against the proceeds of a sold property and to set aside various payments and security granted to an investor, Dr. Goldfinger, as transfers at undervalue, fraudulent conveyances, or unjust preferences.

The court allowed some of the proofs of claim while disallowing others or requiring further evidence.

The court dismissed the trustee's claim to set aside a $2.5 million settlement payment to Goldfinger, finding it was made at arm's length and without intent to defraud creditors.

However, the court set aside a $471,000 payment to Goldfinger as a fraudulent conveyance, finding it was made with the intent to defeat another secured creditor, and ordered Goldfinger to repay the amount to the bankrupt estate.