Miranda Spence

The moving parties sought leave to appeal an order that allowed the respondent to amend its statement of defence, added a third party as a necessary party, and dissolved an injunction preventing the respondent from disposing of disputed lands.

The Divisional Court granted leave to appeal specifically on the issue of lifting the injunction, finding good reason to doubt the correctness of that part of the order because the moving party would suffer irreparable harm if the respondent sold the land before the court determined ownership rights.

Leave to appeal the joinder of the third party was denied.

The Nortel group of companies filed for insolvency protection across multiple jurisdictions.

Following the sale of Nortel's assets, approximately $7.3 billion was placed in escrow.

The trial judge ordered that these lockbox funds be allocated on a pro rata basis among the various debtor estates, finding that Nortel operated as a highly integrated multinational enterprise and that the master research and development agreement did not govern allocation upon insolvency.

Several parties sought leave to appeal under the Companies' Creditors Arrangement Act.

The Court of Appeal denied leave, finding that the proposed appeals were not prima facie meritorious, did not raise issues of significance to the practice, and would unduly hinder the progress of the proceedings.

The plaintiff bank brought a motion for summary judgment against the defendant guarantor to collect on a commercial loan in default.

The defendant pleaded non est factum, arguing he signed a $1,000,000 personal guarantee without reading it, mistakenly believing his liability was limited to $500,000.

The court applied the three-part test for non est factum and found no genuine issue for trial, noting the defendant was careless in failing to read the document and there was no misrepresentation by the bank.

Summary judgment was granted to the plaintiff.

The defendant, Romandale Farms Limited, brought a motion for leave to amend its statement of defence, add third parties, consolidate actions, and dissolve a 2007 interlocutory injunction in a complex commercial real estate dispute.

The plaintiff opposed the amendments, arguing prejudice, res judicata, and withdrawal of an admission.

The court granted leave to amend, finding no non-compensable prejudice and that the proposed defences were tenable and responsive to the plaintiff's amended claims regarding a partial settlement agreement.

The court also joined one third party for limited purposes to avoid multiplicity of proceedings and dissolved the 2007 injunction, as the plaintiff no longer claimed a proprietary interest in the land.

Following a judgment allowing appeals and cross-appeals in part, the parties were unable to agree on costs.

The Court of Appeal awarded costs on a partial indemnity scale, ordering Charles Sr. to pay Diana $50,000, Charles Jr. to pay Diana $15,000, Lisa to pay Charles Jr. $15,000, and Ford to pay Lisa $15,000.

All additional requests for costs were dismissed.

The appellant husband appealed a trial judgment that awarded his bankrupt wife an equalization payment, lump sum spousal support, and costs.

The wife's former lawyers also appealed an order requiring the assessment of their accounts and a personal costs award against them.

The Court of Appeal allowed the appeal in part, setting aside the equalization payment because the wife lacked capacity to assert the claim after her bankruptcy, and setting aside the assessment of the lawyers' accounts.

However, the Court upheld the lump sum spousal support award and the costs awards, including the personal costs award against the wife's former lawyer for acting in bad faith and running up costs without reasonable cause.

The debtor filed a proposal under the Bankruptcy and Insolvency Act.

At the first meeting of creditors, the proposal trustee allowed several disputed creditors to vote, and the proposal was overwhelmingly defeated, resulting in a deemed assignment in bankruptcy.

The debtor appealed the trustee's decision, arguing the disputed creditors' claims should have been expunged due to unliquidated damages claims and equitable set-off.

The court dismissed the motion, finding the trustee correctly allowed the votes based on the record, and noted that the proposal would have been defeated even without the disputed votes.

The plaintiff brought a motion for partial summary judgment alleging breach of the Copyright Act regarding marketing materials for a residential development.

During argument, the plaintiff realized its legal position was flawed and abandoned the motion.

The defendant sought costs of $34,719 on a substantial indemnity basis, while the plaintiff suggested $6,000.

The court found the motion was peripheral to the main action, unnecessary, and caused significant delay, bordering on an abuse of process.

Applying Rule 20.06, the court awarded the defendant costs on a substantial indemnity basis, fixed at $29,719.12.

The plaintiff bank moved for judgment against a guarantor under a written guarantee and an executed consent to judgment held in escrow.

The responding party argued, in substance, that the bank was negligent or otherwise responsible for failing to achieve an anticipated return on the sale of secured property.

The court held that the express terms of the guarantee displaced any duty of care to the guarantor regarding liquidation of the security and permitted the bank to compromise or enforce remedies in any order it chose.

Judgment was granted for $738,150 plus pre-judgment interest, with costs of $20,000 inclusive.

The appellant appealed a summary judgment decision that found no arguable issue for trial regarding its claims for equitable and legal set off.

The Court of Appeal upheld the motion judge's findings that the equitable set off claims lacked the requisite close connection, and the legal set off claims were either for unliquidated damages or factually complex amounts not readily ascertainable.

The appeal was dismissed with costs awarded to the respondent.

Mortgagees obtained summary judgment in a mortgage action and subsequently obtained an order permitting the issuance of writs of possession.

The corporate mortgagor defendants brought a motion to set aside or vary the order granting leave to issue the writs, alleging the order was obtained without notice and based on misleading facts.

The court held that the motion without notice was permitted under the Rules of Civil Procedure and that there was no evidentiary basis supporting the allegations of misrepresentation.

The defendants admitted the mortgage debt but provided no evidence demonstrating the ability to repay the amounts owing.

The court found no basis to interfere with the master's order and dismissed the motion.

The moving parties sought leave to appeal, an extension of time to appeal, and a stay of enforcement of a writ of possession arising from a mortgage default judgment and a Master's reference report.

The Court of Appeal dismissed the motion, finding that the moving parties had not pursued their right to oppose confirmation of the Master's report in the Superior Court, meaning there was no appeal properly before the Court of Appeal.

The court also declined to stay the writ of possession, noting the substantial admitted default and the lack of evidence regarding the moving parties' ability to pay.

The respondents requested an adjournment of a scheduled hearing less than one week in advance because their newly retained counsel was unavailable.

The applicant opposed the request.

The Tribunal denied the adjournment, holding that retaining new counsel who is unavailable on the eve of a hearing does not constitute an exceptional circumstance justifying an adjournment under the Tribunal's Practice Direction.

Following a successful appeal, the appellant sought costs for the appeal, a motion to set aside an order, and the underlying motion before the lower court.

The respondents did not oppose the costs of the appeal.

The Court of Appeal awarded the appellant costs for all three matters, totaling $49,278.09.

The appellant appealed the dismissal of its action brought pursuant to s. 38(1) of the Bankruptcy and Insolvency Act to set aside alleged fraudulent conveyances.

The motion judge had dismissed the action as an abuse of process and barred by res judicata due to the bankrupt's discharge and the dismissal of a prior action.

The Court of Appeal allowed the appeal, holding that under s. 38(1), the appellant was advancing the Trustee's claim, not its own personal claim, meaning the action was not a collateral attack on the discharge order or barred by res judicata.

The Court also dismissed the respondents' motion to review a decision refusing to order security for costs against the appellant's counsel, who was acting on a contingency fee basis.