Olando Vinton

This addendum to the judgment in McKenzie-Barnswell v. Xpert Credit Control Solutions Inc., 2025 ONCA 253, clarifies issues regarding post-judgment interest, costs, and the status of the mortgage at issue.

The Court of Appeal for Ontario confirms that post-judgment interest is to be calculated at the statutory rate under the Courts of Justice Act, not the rate in the mortgage, due to findings of unconscionability and wrongful conduct.

The court upholds the trial judge’s substantial indemnity costs award, orders a set-off of costs against the respondent’s indebtedness, and confirms that the unconscionable mortgage shall not be re-registered.

Monies paid into court as security for costs are to be paid out to the appellants’ lawyers in trust.

The Court of Appeal for Ontario considered an appeal from a trial decision setting aside a mortgage and construction contract on the basis of fraudulent misrepresentation and unconscionability.

The appellants, including Xpert Credit Control Solutions Inc. and its director Sam Joshi, challenged the trial judge’s findings and the scope of the remedy.

The Court upheld the findings of liability but found the trial judge erred in setting aside the entire mortgage and awarding speculative damages.

The Court reduced the enforceable mortgage amount to $319,000, reflecting only the legitimate debt, and upheld $153,000 in damages for negligent construction, setting aside the requirement to pay $250,000 into trust.

The plaintiff, a student, brought a motion under Rule 51.06(1) seeking judgment against the defendant instructor for breach of fiduciary duty and an assessment of damages, stemming from a sexual relationship between them.

The motion was dismissed because the court found serious issues of fact and law, conflicting submissions, credibility issues, and the defendant's right to a trial on viva voce evidence, indicating that the admissions made were not sufficiently clear or definite to grant judgment without a full hearing.

The appellant, Donavan Locke, appealed orders from the Superior Court of Justice dismissing his second and third actions (alleging deceit and conspiracy against his former common-law partner and her lawyers regarding a property transfer) and dismissing his own motions (including a constitutional question and criminal contempt).

The Court of Appeal found no errors in the motion judge's decision, affirming that summary judgment was appropriate due to the appellant's lack of evidence and damages.

The court also upheld the dismissal of the appellant's motions, noting the constitutional question was "ill conceived" and there was no basis for criminal contempt.

The appeal was dismissed, and the appellant was ordered to pay costs to each respondent.

The applicant, Shelley Ottele, initiated an application challenging the validity of Powers of Attorney signed by her deceased father, Leo Racine, appointing Aimy Racine, and sought damages for fraud, unjust enrichment, and breach of fiduciary duty.

This endorsement addresses two motions: the applicant's motion to stay proceedings pending an appeal, and the respondent Aimy Racine's motion for security for costs.

The court dismissed the applicant's motion to stay, finding no persuasive basis.

The court granted the respondent's motion for security for costs, finding good reason to believe the applicant's underlying application was frivolous and vexatious and that she had insufficient assets in Ontario to pay costs, as required by Rule 56.01(1)(e).

The applicant was ordered to pay $75,000 as security for costs and $25,253.24 in costs for the motion.

The appellant, Junxia Yu, appealed four orders from a Case Management Master concerning security for costs, leave to amend a statement of defence to add a limitation period, refusal to order production of unredacted diary entries and a prior lawyer's file, and refusal to strike affidavits.

The primary ground of appeal was an alleged violation of natural justice.

The court dismissed the appeal, finding no error in the Associate Justice's rulings.

It held that the appellant failed to demonstrate that the redacted documents were relevant or that their non-production violated natural justice.

The court also found no bad faith in the respondents' motion for security for costs, noting the appellant's failure to provide evidence of impecuniosity.

The argument that security for costs was akin to partial summary judgment, especially given a related counterclaim, was also rejected.

The plaintiff sought costs following a seven-day trial in which she was substantially successful against the defendants for fraud, fraudulent misrepresentation, and breach of contract.

The court found the individual defendant's conduct to be reprehensible, as he fraudulently induced the plaintiff to enter into a construction contract with a fictitious company and performed shoddy work.

Applying the factors under Rule 57.01, the court awarded the plaintiff costs on a substantial indemnity basis in the amount of $286,250 plus disbursements.

The plaintiff brought an action against the defendants for fraud, breach of contract, negligence, and unconscionability arising from a series of private mortgages and a construction contract.

The individual defendant, acting as a trusted friend and financial advisor, induced the plaintiff to enter into a construction contract with a fictitious company and to take out multiple mortgages at high interest rates with his own lending company.

The construction work was abandoned, poorly executed, and failed to comply with the Building Code.

The court found that the defendants committed fraudulent misrepresentation, deceit, and negligence, and that the transactions were unconscionable.

The court set aside the mortgages and the construction contract, and ordered the defendants to pay damages for the cost of repairing and completing the construction.