Michael Ng

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 elderly woman, claimed recovery of money alleged to have been loaned to her daughters and son-in-law.

The defendants asserted the money was a gift.

The court applied the presumption of resulting trust, placing the onus on the defendants to prove a gift.

Considering the plaintiff's unreliable testimony, inconsistencies with her pleading, and credible evidence from a granddaughter, the court found that the defendants successfully rebutted the presumption, establishing that the payments were intended as gifts.

The action was dismissed.

The Public Guardian and Trustee (PGT), acting on behalf of the plaintiff, brought a motion to re-open the case for the limited purpose of providing additional argument on the presumption of resulting trust, an issue they believed was not adequately addressed at trial.

The court allowed the motion, finding no prejudice to the defendants, and ordered the parties to provide additional written submissions on the specific issue.

This endorsement addresses a procedural matter where the parties sought an adjournment on consent to permit negotiation, following an issue with the appointment of a litigation guardian.

The court acknowledged the request but indicated its intention to proceed with a hearing to establish a timetable for the resolution of the matter, potentially incorporating time for negotiations.

The Plaintiff, AZZ Galvanizing Canada Limited, brought a motion to compel discovery responses from the Defendants, Empire Steel Inc. and 1340614 Ontario Inc. (IBT).

The motion primarily concerned the disclosure of hydro cost allocation and subtenant information (Issue 14) by Empire.

While the initial motion was broad, issues were narrowed by agreement, and IBT's portion was adjourned due to counsel's unavailability.

The court found in favour of the Plaintiff on Issue 14, compelling Empire to provide the requested information.

This endorsement addresses the costs of that motion.

The court awarded partial indemnity costs of $16,094.69 to the Plaintiff, finding them largely successful.

The court rejected Empire's arguments for costs against the Plaintiff, citing improper submissions and the lack of novelty in the legal issues.

The costs were deemed fair, reasonable, and proportionate given the complexity and importance of the issues.