Michael G. McQuade

The appellants, acting as mortgagees, sold a 130-acre commercial property under power of sale for $12.5 million.

The trial judge found the fair market value was $16 million and awarded the respondent mortgagor $3.5 million in damages for an improvident sale, noting the appellants failed to adequately market the property or allow meaningful due diligence by potential buyers.

On appeal, the appellants argued the trial judge erred in finding bad faith, imposing liability without expert evidence of appraiser negligence, and calculating damages.

The Court of Appeal dismissed the appeal, holding that the trial judge applied the correct legal test regarding the mortgagee's duty to take reasonable precautions to obtain fair market value and made no palpable and overriding errors in her factual findings.

A court-appointed receiver sought approval of an auction sale process for a high-value unfinished residential property after several years of unsuccessful marketing through traditional listings.

A second mortgagee opposed the proposed reserve price, arguing it was too low and risked insufficient proceeds to reduce the debt under the second mortgage.

The court reviewed confidential appraisal evidence and the property’s extended failed marketing history.

It concluded that the receiver’s valuation and proposed reserve price were more realistic than the objecting mortgagee’s optimistic assumptions.

The court approved the auction process, the receiver’s activities and fees, and granted a sealing order to protect commercially sensitive valuation and auction information.

The plaintiffs advanced funds to a corporation that later went into receivership.

The plaintiffs sought repayment from the individual defendants based on a poorly drafted document entitled 'Agreement to Purchase'.

The court applied the factual matrix approach to contractual interpretation and concluded that the document was intended to be a personal guarantee by the individual defendants for the corporation's debt.

Judgment was granted in favour of the plaintiffs for the outstanding principal and interest.

The respondent requested that the human rights application be dismissed under section 45.1 of the Human Rights Code, arguing the matter was dealt with in a WSIB proceeding, or alternatively deferred pending a WSIAT appeal.

The Tribunal found that the WSIB decision only addressed whether a work-related accident occurred, which did not overlap sufficiently with the Code issues.

The Tribunal denied the request to dismiss or defer, ordered the matter to proceed to mediation, and directed the applicant to provide an update on the WSIAT appeal.

The Bank of Montreal sought leave to appeal a decision certifying two related class actions arising from a Ponzi scheme perpetrated by a bank customer.

The Bank argued that the motions judge erred in finding that the pleadings disclosed causes of action in knowing assistance and negligence, relying on section 437 of the Bank Act and the Anns test for duty of care.

The Bank also challenged the finding that the claims raised common issues.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motions judge's conclusions that it was not plain and obvious the claims would fail and that there was some basis in fact for the common issues.

The plaintiff sought certification of a proposed class proceeding against a financial institution relating to losses arising from a fraudulent investment scheme involving a tooth whitening promotion.

Earlier reasons had found that the criteria under s. 5 of the Class Proceedings Act, 1992 were satisfied except for the requirement that the representative plaintiff adequately represent the class.

The court had concerns regarding the plaintiff’s health following a stroke and his ability to perform the role.

After further medical evidence was filed, including expert neurological evidence confirming no cognitive impairment, the court accepted that the plaintiff could adequately represent the class and that the litigation plan addressed communication with class members and management of damages.

The court concluded that the statutory criteria were met and certified the proceeding as a class action.

The plaintiff sought certification of a proposed class action arising from an alleged investment fraud involving monies deposited into bank accounts held at the defendant bank.

Earlier reasons had found the certification criteria satisfied except for the adequacy of the litigation plan under s. 5(1)(e)(ii) of the Class Proceedings Act, 1992.

After filing a revised litigation plan addressing communication with class members, management of damages, and procedural issues including a jury notice, the court determined the deficiencies had been remedied.

The court approved revised common issues and concluded the statutory requirements for certification were met.

The proceeding was certified as a class action and a representative plaintiff was appointed.

The moving party sought an order requiring production of a solicitor’s reporting letter and account relating to the purchase of a condominium allegedly funded through misappropriated construction trust funds.

The responding parties resisted production on the basis of solicitor-client privilege.

The court held that reporting letters and solicitor accounts arising from real estate transactions are generally privileged as communications directly related to legal advice and services.

The court further held that allegations of fraud alone are insufficient to displace privilege without a prima facie evidentiary basis.

As the moving party failed to establish a prima facie case of fraud, the privilege remained intact and production was refused.

The plaintiff sought to certify a class action against the Bank of Montreal arising from a $77 million investment fraud perpetrated by Salim Damji.

The plaintiff alleged that BMO knowingly assisted in Damji's breach of trust, knowingly received fraudulent funds, and was negligent in its receipt of these funds.

The court found that the plaintiff satisfied the criteria for certification under s. 5 of the Class Proceedings Act, except for the requirement of a workable litigation plan.

The court adjourned the certification motion to allow the plaintiff to provide an acceptable litigation plan.

The plaintiff sought to certify a class action against the Bank of Montreal (BMO) arising from a $77 million Ponzi scheme perpetrated by Salim Damji.

The plaintiff alleged that BMO knowingly assisted in Damji's breach of trust, knowingly received fraudulent funds, and was negligent in its receipt of these funds.

The court granted leave to bring the certification motion and found that the plaintiff met the first four criteria for certification under s. 5(1) of the Class Proceedings Act.

However, the court found the representative plaintiff's health issues and deficiencies in the litigation plan rendered the final criterion unsatisfied.

The certification motion was adjourned for 30 days to allow the plaintiff to address these deficiencies.

Following a civil judgment awarding $3.5 million, the court determined the appropriate quantum of costs and pre-judgment interest.

The parties agreed the successful party was entitled to partial indemnity costs to September 30, 2010 and substantial indemnity costs thereafter but disputed the applicable hourly rates.

The court fixed partial indemnity rates for counsel after mediation and accepted substantial indemnity rates calculated at 1.5 times the partial indemnity rate pursuant to Rule 1.03 of the Rules of Civil Procedure.

The court also addressed deductions for certain attendances and confirmed taxable disbursements.

Pre-judgment interest was ordered on the judgment amount from August 27, 2003 at 3.3% pursuant to s.127(1) of the Courts of Justice Act.

The plaintiff mortgagor brought an action against the defendant mortgagees for the improvident sale of a 125-acre development property under a power of sale.

The property was sold for $12.5 million.

The court found that the defendants failed to take reasonable precautions to obtain the fair market value of the property, having listed it at an inordinately low price, failed to adequately market it, unreasonably restricted the field of potential buyers, and acted with undue haste.

After reviewing competing appraisal evidence, the court determined the fair market value of the property at the time of sale was $16 million.

The court awarded the plaintiff $3.5 million in damages, representing the difference between the fair market value and the sale price.

The applicants sought leave to appeal a decision dismissing their motion to strike a paragraph of the respondent's reply pleading.

The applicants argued the paragraph improperly referred to a privileged settlement offer.

The Divisional Court dismissed the application for leave to appeal, finding the motions judge correctly applied the law of settlement privilege and that the evidentiary record supported the conclusion that the communication was not privileged.

The appellant appealed the dismissal of her counterclaim for loss of profit arising from a contract for the supply of manufactured parts.

The appellant argued that the respondent's defective delivery of the first instalment of parts amounted to a repudiation of the entire contract under s. 30(2) of the Sale of Goods Act.

The Court of Appeal upheld the trial judge's finding that the defective delivery was a severable breach and did not constitute repudiation, as there was no reasonable inference that similar breaches would occur in future instalments.

However, the Court granted leave to appeal the costs order, reducing the trial costs awarded to the respondent from $60,000 to $40,000, finding that substantial indemnity costs were not warranted given the prominence of the counterclaim.

The appellants appealed a summary judgment declaring a franchise agreement validly rescinded under the Arthur Wishart Act and finding that the individual appellant and a subleasing entity were franchisor's associates.

The Court of Appeal upheld the finding regarding the individual appellant, as he owned 50% of the franchisor's shares and ran its day-to-day business.

However, the court allowed the appeal regarding the subleasing entity, finding no evidence that it exercised significant operational control over the franchisee, and directed that issue to proceed to trial.

The appellant pleaded guilty to a Highway Traffic Act offence and was fined.

Due to a clerical error by the justice of the peace, the committal warrant incorrectly stated the appellant was sentenced to a one-year term of imprisonment, leading to his arrest and alleged assault in jail.

The appellant sued the justice of the peace, correctional officers, and others for wrongful arrest and imprisonment.

The motions judge struck the claims against the justice of the peace and correctional officers.

The Court of Appeal dismissed the appeal, finding the appellant failed to plead malice or bad faith with particularity as required to overcome judicial immunity.

The appellant challenged a summary judgment order that had dismissed most of his claims arising from an alleged agreement concerning the purchase, development, and later sale of a Toronto property.

The Court of Appeal held that the dispute turned on conflicting evidence and the central question of good faith, which required findings of fact, weighing of evidence, and implicit credibility determinations.

Those issues could not properly be resolved on a summary judgment motion.

The appeal was allowed, the cross-appeal dismissed, and the summary judgment motion dismissed.