Milton A. Davis

The appellant appealed an order regarding the respondent bank's ability to sell a property.

The Court of Appeal noted that the bank's mortgage had been paid out and found it inappropriate to permit the sale before trial.

The court dismissed the appeal but ordered that the existing stay be continued pending the outcome of the trial to protect the positions of both parties.

The plaintiff sought leave to appeal an order setting aside five ex parte injunctions he had obtained against the defendant regarding the proceeds of a real estate sale.

The motions judge had set aside the orders after finding the plaintiff failed to make full and frank disclosure of material facts, including a $2 million mortgage and other joint ventures, and had admitted to dishonesty in other proceedings.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision or her exercise of discretion in assessing the plaintiff's lack of candour.

The appellant appealed a trial judgment finding he defrauded the respondent in the sale of a business and awarding damages.

The Court of Appeal upheld the trial judge's findings on liability and the valuation of the business.

The Court also upheld the award of $402,000 in consequential damages for wasted expenses incurred by the respondent in attempting to salvage the unviable business.

The appeal was dismissed, subject to a minor clarification in the formal order to prevent double counting of damages.

The appellant, Bank of Montreal, appealed an order granting the respondent, Royal Bank of Canada, priority over the proceeds of the sale of a property and collected rents.

The respondent's registered mortgage was void due to a violation of the Planning Act.

However, the Court of Appeal upheld the motion judge's decision that the respondent was entitled to priority based on the equitable doctrine of subrogation, as it had advanced funds to pay off prior valid encumbrances and municipal taxes.

The Court also upheld the respondent's priority regarding the assignment of rents, which was validly registered under the Personal Property Security Act.

The respondent's cross-appeal seeking an equitable mortgage was dismissed.

Following the dismissal of their appeals regarding construction lien rights, the appellants and respondents made written submissions on costs.

The Divisional Court fixed the respondent Rumble's costs at $20,515.72 on a partial indemnity basis, payable by Cassidy and R & A. The court found the respondent Dana's claim for $41,024.52 excessive given the lack of novel arguments on appeal, and fixed Dana's costs at $15,800.00, payable by Kennedy.

The appellant sued her former family law lawyer for negligence, alleging he failed to adequately protect her equalization claim against her husband, who was a known flight risk.

The trial judge dismissed the action, finding that while the lawyer breached the standard of care in some respects, his recommendation to settle was not an 'egregious error' and his delays did not cause the appellant's loss.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred by applying the 'egregious error' test instead of the standard of reasonableness, and by using a segmented time grid analysis that failed to assess the lawyer's overall failure to advance the case to trial.

The appellants appealed a trial judgment declaring that their claims for work done in assembling and installing a massive truck frame assembly line at the respondent's plant were not lienable under the Construction Lien Act.

The trial judge found that the assembly line was manufacturing equipment and not an 'improvement' to the land or building.

The Divisional Court majority upheld the trial judge's decision, finding no error in his application of the law to the facts.

A dissenting judge would have allowed the appeal, finding the assembly line was an improvement given its size, cost, and degree of attachment to the premises.

Following the dismissal of the main appeal, the successful third parties and defendants sought costs on a full indemnity basis, relying on prior releases and indemnity agreements.

The Court of Appeal found the claimed amounts excessive due to duplication of effort among the multiple respondents.

The Court fixed costs in reduced amounts, awarding a total of $72,000 across the various third parties and the defendant law firm.

The appellants commenced an action against their former lawyers for professional negligence and breach of fiduciary duty.

The lawyers brought third party claims against various entities involved in a real estate project.

The appellants and the third parties had previously settled other litigation and exchanged mutual releases containing 'no claims over' provisions.

The motions judge stayed the main action, finding it was an attempt to re-litigate settled matters and would inevitably lead to third party claims precluded by the releases.

The Court of Appeal upheld the stay, except to allow the appellants to amend their statement of claim to assert a claim for an accounting of funds that was not subject to a third party claim.

The parties entered into commercial agreements to purchase and operate rental properties.

The respondents, passive investors, provided the appellant with promissory notes to secure their obligations.

The agreements contained a stipulated remedy clause stating that if the appellant defaulted, the promissory notes would be deemed paid.

The arbitrator found the appellant in serious default and enforced the clause, refusing relief from forfeiture.

The Superior Court dismissed the appeal.

The Court of Appeal affirmed, holding that not all stipulated remedy clauses with penal consequences are unenforceable, and the equitable doctrine of relief from forfeiture applies to enforce such clauses where it is not unconscionable to do so.

The appellants defaulted on a mortgage held by the respondent, who subsequently attorned rents, took possession of the property, and sold it under a power of sale.

The respondent sued for the deficiency, while the appellants counterclaimed for damages, alleging improper procedures and mismanagement.

The trial judge dismissed the deficiency claim and awarded the appellants reduced damages.

On appeal and cross-appeal, the Court of Appeal upheld the respondent's right to take possession and sell the property but found the trial judge erred in valuing the property based on an internal memorandum and failed to properly assess whether the respondent breached its duties as a mortgagee in possession.

The matter was remitted for a new trial on the issues of mismanagement, valuation, and the deficiency claim.

In a supplementary endorsement, the Court of Appeal for Ontario clarified its previous judgment regarding the post-maturity interest rate on a promissory note.

The court set aside its previous endorsement and specified that the intent was to ensure the interest after maturity remained the same as before maturity.

Accordingly, the post-maturity interest rate was set at 10 per cent per annum, calculated semi-annually not in advance.

The appellants requested that the Court of Appeal change its judgment to award post-maturity interest at 10 per cent per annum as compound interest rather than simple interest.

The Court declined the request, noting that the appellants had not previously asserted a claim for compound interest and that the governing promissory note did not provide for it.

The award of 10 per cent simple interest was maintained.

The appellants sold their shares in a trailer park to the respondents, taking back a promissory note bearing 10 percent interest annually until maturity.

The note did not specify a post-maturity interest rate.

After the respondents defaulted, the trial judge held that the post-maturity interest rate was 5 percent pursuant to section 3 of the Interest Act.

The Court of Appeal allowed the appeal, holding that the prejudgment interest provisions of the Courts of Justice Act ousted section 3 of the Interest Act.

The Court exercised its discretion to fix the post-maturity interest rate at 10 percent, matching the pre-maturity rate, to reflect commercial reality and prevent the respondents from benefiting from their default.

The moving party brought a motion to quash the responding parties' appeal, arguing that the appeal did not fall within sections 193(a) to (d) of the Bankruptcy and Insolvency Act and therefore required leave.

The Court of Appeal disagreed, finding that the appeal fell within section 193(c) because the order appealed from would declare the moving party a creditor and allow it to prove a claim in excess of $3 million, meaning the property involved exceeded $10,000.

The motion to quash was dismissed with costs fixed at $5,000.

The appellants challenged the valuation of dissenting shareholders' shares in a closed-end investment holding company, arguing that fair value should have been determined by net asset value rather than stock market trading price.

The court held that the appropriate valuation methodology depends on the facts of each case and accepted expert evidence that market price was the better indicator in light of the issuer's nature, the illiquidity of some portfolio assets, and the trading history of the shares.

The court found it was open to the applications judge to prefer that expert evidence and concluded there was no error in adopting the market value approach.

The appeal was dismissed with costs.

The appellant entered into a mortgage agreement that included a profit-sharing scheme.

The Supreme Court of Canada upheld the Court of Appeal's decision that the scheme constituted a criminal interest rate under s. 347 of the Criminal Code.

The Court also held that s. 347 is intra vires the Parliament of Canada and does not unconstitutionally infringe on provincial jurisdiction over property and civil rights.