Milton A. Davis

A secured creditor applied for the appointment of a receiver over a resort property following repeated defaults under loan agreements secured by mortgages and general security agreements.

A second mortgagee opposed the application, proposing to cure arrears under the first mortgage pursuant to s. 22 of the Mortgages Act and conduct a power of sale instead.

The court considered whether the appointment of a receiver under s. 101 of the Courts of Justice Act and s. 243(1) of the Bankruptcy and Insolvency Act was “just or convenient.” Given ongoing defaults, competing creditor interests, tax arrears, and disputes regarding the marketing and sale process, the court concluded that a court-supervised receivership would better protect the interests of all stakeholders.

The application was granted and a receiver appointed, subject to a reduced borrowing limit.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The principal respondents were awarded costs of $50,000 on a substantial indemnity basis.

The respondent Cushman & Wakefield Ltd. was awarded costs of $10,000 on a partial indemnity basis.

The appellant condominium corporation appealed a summary judgment dismissing its action against the respondents for allegedly causing it to overpay for surface rights to a parking garage.

The Court of Appeal dismissed the appeal, finding that the action was statute-barred by the two-year limitation period.

The Court held that the appellant had all relevant information by August 1, 2008, when a new purchaser took control of the board, but did not commence the action until November 8, 2010.

The Court also rejected the argument that the 10-year limitation period under the Real Property Limitations Act applied, as the claims were framed in tort, contract, and breach of duty.

The trustee in bankruptcy suspected the bankrupt was hiding assets using a third party.

The trustee sought an order compelling the bankrupt and his lawyer to disclose the identity of the person paying the bankrupt's legal fees for a previous motion.

The motion judge granted the order, finding the information was not privileged.

On appeal, the Court of Appeal allowed the appeal, holding that administrative information relating to the solicitor-client relationship, including the identity of the person paying the lawyer's bills, is presumptively privileged.

The court found the presumption was not rebutted because the information was relevant to the merits of the underlying dispute and its disclosure would reveal confidential communications.

The moving party, a local resident, brought a motion for leave to intervene as an added party or friend of the court in an application concerning the sale of a charitable property operated as a tennis and aquatic club.

The main parties to the application had reached a settlement to sell the property and divide the proceeds among charitable purposes.

The court dismissed the motion to intervene, finding that while the moving party had an interest in the subject matter, her intervention would not significantly enhance the court's ability to determine the issues, as her position mirrored that of the applicants and the Public Guardian and Trustee was already involved.

Furthermore, granting intervenor status would cause undue delay and prejudice to the parties who had already reached a settlement.

The court considered whether a single-purpose corporate purchaser seeking specific performance after a failed land transaction was exempt from the mitigation principle in contract damages.

The majority held that incorporation benefits carry corresponding burdens, including reasonable mitigation efforts where substitute opportunities are available.

It concluded the purchaser lacked a substantial and legitimate basis to avoid mitigation and that the evidentiary record supported available comparable development opportunities.

The dissent would have restored trial damages, finding no palpable and overriding error on mitigation opportunity and reasonableness.

The appeal and cross-appeal were both dismissed, leaving the appellate reduction to nominal damages in place.

Multiple defendants brought motions seeking security for costs against a plaintiff who was ordinarily resident outside Ontario in two related civil actions.

The plaintiff argued impecuniosity and contended that an order for security would effectively drive him from the litigation.

The court held that the plaintiff failed to meet the high evidentiary threshold required to establish impecuniosity because he provided outdated financial disclosure and did not produce complete, current documentation regarding income, assets, liabilities, and borrowing capacity.

Finding the requested security amounts reasonable given the anticipated complexity and duration of the litigation, the court ordered the plaintiff to post security for costs in both actions, failing which the proceedings would be stayed.

The appellants appealed an order dismissing their action against the respondent and declaring the individual appellant a vexatious litigant.

The Court of Appeal upheld the dismissal of the action, as the corporate appellant was in receivership and the individual appellant lacked authority to bring a claim on its behalf.

However, the Court allowed the appeal regarding the vexatious litigant declaration, holding that under s. 140(1) of the Courts of Justice Act, such an order can only be made on an application, not on a motion in an action.

The plaintiff brought a motion for summary judgment to recover amounts owing under a loan agreement.

The defendant admitted the loan in his statement of defence but alleged he signed the agreement under duress and without understanding its legal ramifications.

The defendant did not appear on the motion despite service by mail and email, which the court validated under the Rules of Civil Procedure.

The court found there was no genuine issue requiring a trial and that the evidentiary record established the debt.

Summary judgment was granted for the outstanding loan amount with contractual interest and substantial-indemnity costs.

The appellant appealed an order requiring her to pay the fees and disbursements of an equitable receiver.

A prior court order had provided that if the appellant paid the outstanding judgment by a certain date, any further equitable receivership costs would be to the account of another party.

The appellant satisfied the judgment by the deadline, but the order under appeal erroneously included costs incurred after that date.

The respondent agreed the order was in error.

The Court of Appeal allowed the appeal, set aside the relevant paragraph of the order, and referred the matter back to the motion judge for reassessment.

The defendant developer and related parties brought a motion for summary judgment dismissing a condominium corporation’s claims arising from a 2005 transaction in which the corporation purchased surface rights to parking units and granted mortgages to the developer.

The corporation alleged negligence, breach of fiduciary duty, conflict of interest, and breach of statutory duty, claiming the purchase price was inflated and the mortgages invalid.

The court held that the claims were statute‑barred under the Limitations Act, 2002 because the relevant facts were known or reasonably discoverable at the time of the 2005 transaction.

The court further found no admissible evidence that the purchase price was excessive or that the defendants caused compensable harm.

Summary judgment was granted dismissing the action, and related motions for an injunction and to amend the claim were also dismissed.

Following a prior order requiring disclosure of the identity of a person who paid the bankrupt's legal fees, the court addressed the appropriate costs award.

The trustee sought substantial indemnity costs, arguing the bankrupt’s earlier motion lacked merit, while the bankrupt requested that no costs be awarded due to the allegedly novel legal issue.

The court held that the bankrupt’s position on privilege, although unsuccessful, was arguable and did not justify substantial indemnity costs.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court concluded that costs should follow the event but that the amount sought was excessive.

The court fixed partial indemnity costs payable by the bankrupt to the trustee at $7,000 inclusive of disbursements and HST.

Following earlier reasons dismissing the plaintiffs’ claim and declaring one plaintiff a vexatious litigant, the successful defendant sought costs on a substantial indemnity basis.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and emphasized the litigant’s persistent abuse of the court process, including repeatedly commencing unreasonable proceedings, making unfounded allegations against legal professionals and judicial officials, disobeying court orders, and failing to pay prior costs awards.

The court held that such conduct constituted special circumstances justifying costs on a substantial indemnity basis.

After reviewing the bill of costs, the court found the amount claimed fair and reasonable.

Costs of $69,121.33 were awarded payable forthwith.

The appellants appealed a trial judgment finding them liable for solicitor negligence in failing to seek instructions on whether a mortgage should be registered on all three parcels of land.

The Court of Appeal dismissed the appeal, finding that any error regarding issue estoppel had no effect on the outcome, as the measure of damages would be the same.

The Court also upheld the trial judge's award of compound interest at the mortgage rate of 8.4 percent, confirming that compound interest can be awarded as compensation in a solicitor's negligence case rooted in a mortgage transaction.

The appellant appealed a decision upholding a receivership order, arguing his consent to the order was obtained through fraud or conditioned on a $150,000 advance.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's conclusion that there was no evidence of fraud or conditional consent in the material before him.

The appellants and respondents acted as co-listing agents for a property and signed an agreement stating that 'any clients from open houses will be shared'.

A client met at an open house later purchased two other properties through the appellants, generating approximately $325,000 in commissions.

The respondents sued for half the commissions and succeeded at trial.

The Court of Appeal dismissed the appeal, finding the clause unambiguously required the agents to share clients introduced through the open house, which implicitly included sharing the resulting commissions.

The Court of Appeal previously allowed the defendant's appeal, reducing the plaintiff's damages for breach of contract from $1,935,500 to nominal damages of $1 due to a failure to mitigate.

In this costs endorsement, the court applied the cost consequences of Rule 49.10(2) because the plaintiff obtained a judgment less favourable than the defendant's pre-trial offer to settle for $100,000.

The defendant was awarded net partial indemnity costs of $400,000.

The appellant school board breached an agreement of purchase and sale by failing to use its best efforts to obtain a severance for a parcel of land.

The respondent purchaser sued for specific performance or damages.

The trial judge awarded damages for lost profits.

On appeal, the Court of Appeal upheld the finding of breach but allowed the appeal on the issue of mitigation.

The Court found that the respondent, a single-purpose company, admitted it had no intention of mitigating its damages and took no steps to do so, despite its parent company purchasing other comparable properties.

The judgment was set aside and nominal damages of $1 were substituted.

The plaintiffs moved for leave to appeal and for a stay of an order refusing to grant an adjournment of the trial.

The court dismissed the motion, finding that the decision to refuse an adjournment is discretionary and entitled to high deference, particularly on the Commercial List.

The plaintiffs failed to satisfy the test under Rule 62.02(4) for leave to appeal an interlocutory order, as the issue was not of broad public importance and there was no basis to doubt the correctness of the order.

The appellants appealed the dismissal of their application for a declaration that sections 7(3)(d)(i) and 7(3)(h.2) of the Personal Information Protection and Electronic Documents Act (PIPEDA) violate section 8 of the Charter.

The Royal Bank of Canada had obtained information from the Toronto Dominion Bank regarding fraudulent mortgage transactions involving the appellants' trust accounts, which it used to obtain a Mareva injunction.

The Court of Appeal dismissed the appeal, finding that PIPEDA regulates private organizations and does not transform them into state agents, thus section 8 of the Charter was not engaged.

Furthermore, the appellants lacked a reasonable expectation of privacy in the records.