Michael Hebert

The plaintiffs, owners of a commercial property, sued the defendants for environmental contamination allegedly emanating from a neighbouring gas station.

Pending trial, the plaintiffs brought a motion for an order under the oppression remedy of the Business Corporations Act requiring the defendants to pay $8,000,000 into court as security, or alternatively, a Mareva injunction freezing the defendants' assets.

The court dismissed the motion, finding that the plaintiffs, as potential creditors with an unliquidated claim, did not qualify as complainants under the oppression remedy.

The court also denied the Mareva injunction, concluding there was no real risk of asset dissipation.

The plaintiffs brought a motion seeking an order under s. 248 of the Business Corporations Act requiring the defendants to pay $8 million into court as security for an environmental contamination claim.

Prior to the motion, the parties exchanged offers to settle.

While they agreed on the security amount, they disagreed on when and how the costs of the motion would be determined.

The defendants argued a settlement was reached and brought a motion to enforce it, claiming costs were a collateral issue.

The court found that costs were an essential term of the settlement offers and, because there was no unequivocal acceptance of all terms, no binding settlement was reached.

The motion to enforce the settlement was dismissed.

The plaintiff, as assignee of a bankrupt company's trustee, previously obtained summary judgment setting aside the transfer of several properties to the defendant.

A remaining issue concerned a mortgage on three of those properties, which had been discharged by a non-party numbered company controlled by the defendant prior to the bankruptcy.

The numbered company sought equitable relief to set aside the discharge and re-register the mortgage, claiming the discharge was a unilateral mistake.

The court dismissed the request, finding that the discharge was a deliberate, fully-informed decision made to clean up title, and did not meet the demanding preconditions for the equitable remedy of rectification.

The plaintiff, as assignee of a trustee in bankruptcy, brought a motion for summary judgment seeking to set aside the transfer of six properties from the bankrupt corporation to the spouse of its sole director.

The transfers occurred less than three months before the corporation filed a notice of intention to make a proposal in bankruptcy.

The court found that the transfers were made at undervalue between non-arm's length parties, constituted a fraudulent preference, and were fraudulent conveyances.

The court declared the transfers void and ordered them set aside, subject to a further hearing regarding a mortgage on some of the properties.

The moving party sought partial summary judgment and default judgment declaring an equitable mortgage or equitable interest over two Ottawa properties, asserting priority over liens registered by the Canada Revenue Agency for tax debts of one of the defendants.

The claim relied primarily on a written agreement and the alleged use of funds provided by the moving party in property transactions.

The court held that the agreement did not establish the essential elements of an equitable mortgage, including a clearly defined debt and intention to charge specific property as security.

Significant disputes existed regarding the source of funds and the parties’ intentions, raising credibility issues.

The court concluded that these issues required viva voce evidence at trial and dismissed the motion for summary judgment.

The defendant bank sought leave to appeal to the Divisional Court from an order certifying a class proceeding arising from unauthorized access to customer information by a bank employee.

The proposed appeal challenged the class definition, the certification of a waiver of tort claim, and the certification of claims for non‑pecuniary damages in negligence and contract without proof of psychiatric injury.

The court held that the certification judge had applied the correct low threshold applicable at the pleadings and certification stage and that the bank had not shown conflicting authority or good reason to doubt the correctness of the order under Rule 62.02(4) of the Rules of Civil Procedure.

The court further held that the class definition was not impermissibly over‑inclusive and that the waiver of tort issue met the “some basis in fact” standard for certification.

Leave to appeal was therefore refused.

Following the dismissal of a corporate plaintiff’s claim on summary judgment arising from a failed commercial real estate transaction, the court determined the appropriate allocation and quantum of costs among multiple parties.

The defendants sought elevated costs relying on offers to settle and alleged litigation tactics by the plaintiff.

The court awarded enhanced costs to the defendants and held that the controlling individual behind the corporate plaintiff could be personally liable for costs by piercing the corporate veil.

The court also interpreted an indemnity clause signed by a corporate officer as creating joint personal liability for full indemnity costs to one defendant.

Various additional costs claims by other parties were dismissed.