M. Paul Downs

The plaintiffs, an investment corporation and its principals, suffered losses from a failed real estate development and sought to recover their unsecured investment in priority to secured creditors.

The secured creditors (defendants) brought motions for summary judgment to dismiss the plaintiffs' claims.

The court dismissed the summary judgment motions, finding complex factual issues, multiple credibility assessments, and a risk of inconsistent findings if partial summary judgment were granted.

The court concluded that the current record was not appropriate for summary judgment and that a full trial was required to resolve the intertwined issues, including allegations of knowing receipt of trust property and conspiracy.

The plaintiff was successful on a motion for summary judgment for the sale of a mortgaged property and sought substantial indemnity costs of $16,285.09 based on the mortgage covenant.

The self-represented defendant did not file costs submissions.

The court considered the factors under Rule 57.01(1), noting the defendant unduly prolonged the matter and advanced meritless arguments.

The court fixed costs payable to the plaintiff at $15,000 inclusive of HST and disbursements.

The defendants moved to discharge a certificate of pending litigation (COPL) registered against a property after the plaintiff corporation had been voluntarily dissolved.

The plaintiffs alleged the property had been fraudulently transferred prior to dissolution and sought to maintain the COPL, arguing that shareholders retained a beneficial interest or that the court should preserve the certificate on a nunc pro tunc basis pending revival of the corporation.

The court held that a dissolved corporation lacks capacity to commence or maintain proceedings and therefore cannot sustain a COPL.

Shareholders of a dissolved corporation also cannot assert personal claims for wrongs done to the corporation or step into its position to maintain the certificate.

The court declined to exercise nunc pro tunc discretion, finding that the alleged fraud and potential revival of the corporation were matters for trial and did not justify maintaining the encumbrance.

The plaintiffs advanced funds to a corporation that later went into receivership.

The plaintiffs sought repayment from the individual defendants based on a poorly drafted document entitled 'Agreement to Purchase'.

The court applied the factual matrix approach to contractual interpretation and concluded that the document was intended to be a personal guarantee by the individual defendants for the corporation's debt.

Judgment was granted in favour of the plaintiffs for the outstanding principal and interest.

On a summary judgment motion in long-running drainage litigation, the moving defendants sought dismissal on limitation grounds and substantial indemnity costs.

The responding plaintiffs opposed and sought related procedural relief, including amendment of pleadings to particularize nuisance and to plead discoverability and fraudulent concealment.

The court held that the record disclosed multiple genuine issues requiring a trial, including disputed facts regarding design, construction, disclosure obligations, and the interaction of potentially applicable statutory limitation regimes.

Summary judgment was dismissed, leave to further amend the amended statement of claim was granted, and the matter was directed to proceed expeditiously toward trial.