Michael Suria

The moving parties sought a stay pending appeal of a summary judgment in a mortgage enforcement action that required them to vacate their residential home.

The responding party had obtained a writ of possession after the moving parties defaulted on a loan of $843,750.

Applying the RJR MacDonald test, the motion judge found the appeal had little merit and the moving parties had not identified a valid defence.

However, weighing the interests of justice, the court was concerned that immediate enforcement would cause serious harm to the moving parties' three children, including one child with autism.

A stay was granted until March 30, 2026 to permit an orderly transition, with no costs awarded given divided success.

This endorsement addresses the issue of costs following a successful summary judgment motion by the plaintiff, Esther Gerstel Inc., against the defendant, Denise Michelle Scott, in a mortgage enforcement proceeding.

The court considers the contractual right to full indemnity costs under the mortgage, the conduct of the parties, and the principle of proportionality.

The court ultimately awards the plaintiff full indemnity costs in the reduced amount of $15,500.00, finding no special circumstances to depart from the contractual terms and noting the defendant’s partial success regarding renewal fees.

The plaintiff, Esther Gerstel Inc. (EGI), brought a motion for summary judgment against the defendant, Denise Michelle Scott, for payment of amounts due under a mortgage and for possession of the mortgaged property.

The only issue was the amount owing, as the defendant acknowledged some amount was due.

The court found this was an appropriate case for summary judgment, holding that the principal and interest claimed by EGI were established, but that two renewal fees were not.

The court ordered payment of the principal and interest, but not the disputed renewal fees, and granted EGI possession of the property, with a 45-day period for the defendant to pay before enforcement.

The applicant, Kristina Marie Jauvin, brought a motion to terminate a bare trust arrangement concerning a property at 186 Sedgemount Drive, Toronto, and sought a vesting order to transfer the property into her name.

The property was originally owned by her deceased father, Kenneth Barnett Lennie, who intended for it to pass to her.

Due to her financial circumstances, her deceased husband, Richard Jean Jauvin, was added to the title as a joint tenant to hold the property in trust for her, as confirmed by a declaration of trust.

Both Kenneth and Richard subsequently passed away, leaving the property title unresolved.

The court granted the application, finding that the applicant met the requirements of the rule in Saunders v. Vautier, being the sole beneficial owner with capacity.

Service on the deceased respondents was dispensed with, as no other parties had a potential interest and the other beneficiary consented.

The Plaintiff, Eleonora Grillo, brought a motion seeking leave to amend her statement of claim and to register a certificate of pending litigation (CPL) against a property owned by the defendant, Arturo Spadafora.

The plaintiff claimed an equitable mortgage over the property based on a promissory note.

The defendants consented to the amendment of the statement of claim but opposed the CPL.

The court granted leave to amend the statement of claim but dismissed the motion for leave to register the CPL, finding that the plaintiff did not have a reasonable claim to an interest in the property, as the promissory note did not extend to after-acquired property and the CPL was sought primarily as a debt collection tool rather than to protect a legitimate interest in land.

Costs were awarded to the defendants.

The plaintiff, an elderly homeowner, brought a motion to continue a Mareva injunction against her contractor, hold the proceeds of the sale of her home in court, and set aside a default judgment obtained by a mortgagee.

She alleged that the defendants conspired to defraud her by charging exorbitant amounts for a home renovation funded by unconscionable high-interest mortgages.

The court found a strong prima facie case of fraud based on the significant discrepancy between the quoted cost and the amount paid for the renovations.

The court continued the Mareva injunction until the contractor posted $500,000 in security, ordered the sale proceeds to remain in court, and set aside the default judgment, allowing the plaintiff to defend the mortgage action on the merits.

At the start of a motion for a Mareva injunction, a journalist requested permission to record the proceeding with his own audio recording device pursuant to s. 136(2)(b) of the Courts of Justice Act.

The court denied the request, finding that while the Consolidated Provincial Practice Direction permits media to use electronic devices for notetaking, this is subject to the presiding judge's discretion under the Act.

Because an official court reporter was present to provide a complete and accurate recording, the court held there was no need for a second recording by the media.

The appellants appealed a summary judgment that required them to pay an additional amount under a collateral mortgage after the principal debt (promissory note) had been paid.

The Court of Appeal found that the motion judge erred in granting what were, in essence, two separate judgments for the same obligation.

Once the principal debt was paid, the collateral security was spent, and the respondent had no right to claim further under the mortgage.

The appeal was allowed in part, ordering the respondent to repay the additional amount and setting aside the judgment against one of the appellants.

A case conference was held to establish a timetable for an upcoming motion for summary judgment.

The court endorsed the schedule agreed to by all counsel, setting deadlines for the delivery of materials, cross-examinations, and factums.

The applicants sought a prescriptive easement over a portion of their neighbours' driveway to allow for parking and access to their home.

The properties were converted to Land Titles in 2001, requiring the applicants to prove 20 years of continuous, uninterrupted, open, and peaceful use without permission prior to that date.

The court found the historical evidence of the previous owners' use satisfied the requirements of the doctrine of lost modern grant.

The application was granted, establishing a prescriptive easement for ingress and egress, and the respondents were prohibited from building a fence that would obstruct this access.

The plaintiff, having succeeded in a summary trial under simplified rules for a construction lien claim, sought substantial indemnity costs.

The defendants argued for proportionality and a lower award.

The court found the plaintiff presumptively entitled to costs but rejected substantial indemnity due to issues with the plaintiff's offer to settle (all-inclusive amount and 30-day expiry term).

The court awarded partial indemnity costs, fixing fees at $35,000 plus HST and disbursements, totaling $44,813.92.

The Plaintiff, James Joseph Walsh, brought a motion for summary judgment seeking repayment of outstanding debts from the Defendants, Janina Joseph-Walker and Avenue Developments Inc., totaling $353,000 from dishonoured bills and $100,000 in unsecured debt.

The Defendants denied the debts were due, asserting they were subject to repayment terms and disputing personal liability for Ms. Joseph-Walker.

The court applied the three-part summary judgment analysis, finding genuine issues of material fact regarding the terms of the agreements and the applicability of the Bills of Exchange Act.

The motion judge determined that a mini-trial was inappropriate and that a full trial was necessary to resolve the conflicting evidence.

Consequently, the motion for summary judgment was dismissed.

The defendant brought a motion to dismiss the plaintiff's construction lien action for failure to pay a previous costs award.

The plaintiff brought a cross-motion to stay its own action and compel the defendant to participate in arbitration pursuant to their contract.

The court held that a master does not have jurisdiction to appoint an arbitrator under section 10(1) of the Arbitration Act, as that requires an application to a judge.

The court exercised its discretion under section 47 of the Construction Lien Act to dismiss the remaining contract action, noting it served no purpose after the lien was discharged.

The court also dismissed the action based on the plaintiff's failure to pay the prior costs award.

Following the discontinuance of a civil action seeking enforcement of alleged trust agreements relating to several properties, the defendant brought a motion for costs under Rule 23.05(1) of the Rules of Civil Procedure.

The defendant sought substantial indemnity costs and requested that the plaintiff’s solicitor be personally liable for those costs under Rule 57.07.

The court held that although the action met the minimal threshold of a bona fide claim, the plaintiff’s refusal to provide particulars upon demand unnecessarily prolonged the proceeding.

The court declined to impose costs personally against counsel and rejected the request for substantial indemnity costs.

Partial indemnity costs were awarded to the defendant against the plaintiff for the unnecessary motion for particulars.