Patrick R. Simon

This decision addresses whether legal costs incurred to obtain a declaration that a debt survives bankruptcy under section 178(1)(d) of the Bankruptcy and Insolvency Act (BIA) also survive the bankrupt's discharge.

The plaintiff had previously obtained a ruling that its debt against a defendant survived his bankruptcy.

The parties agreed on the quantum of costs ($50,000) for that prior motion, but disputed whether these costs were also non-dischargeable.

The plaintiff argued that the costs were an intrinsic consequence of the judgment.

The defendants contended that these were post-bankruptcy debts, separate from the original debt, and did not fall under BIA exceptions.

The court, distinguishing the case from those where bankruptcy had not yet occurred, held that it would be inequitable for the underlying debt to survive bankruptcy while the costs necessary to secure that declaration did not.

The court found the costs to be an intrinsic aspect of the judgment and therefore ordered that they also survive the bankrupt's discharge.

No costs were awarded for the present costs motion.

The plaintiff brought a cross-motion to declare that a default judgment debt owed by the defendant, a corporate director, survived his bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The defendant had breached the trust provisions of the Construction Lien Act by allowing construction financing funds to be used for non-project purposes.

The court found that the defendant, as a fiduciary, misappropriated trust funds through willful blindness and failure to oversee the corporation's finances.

The court declared that the judgment debt of $181,133.23 plus costs survived the bankruptcy.

The plaintiff, Podogaetam Holdings Inc., brought a motion for partial summary judgment against the defendants, Stephane Langlois and Pierre Charron.

The plaintiff sought a finding that Langlois breached his contract, and initially that Charron was negligent and breached fiduciary duties.

At the outset, the plaintiff withdrew the negligence claim against Charron and acknowledged Langlois was not disputing the breach of contract claim, leading to judgment against Langlois on that basis only.

All claims against Christian Pilon were dismissed by agreement.

The core of the motion proceeded on the breach of fiduciary duty claim against Charron.

The court dismissed the motion for partial summary judgment, finding genuine issues of credibility and conflicting evidence regarding the circumstances of the loan, the plaintiff's reliance on Charron, and the plaintiff's acknowledgment of risks and waiver of independent legal advice.

The court also noted that the issue of fiduciary duty could not be readily bifurcated from other negligence claims, making partial summary judgment inappropriate and risking inconsistent findings.

Following the dismissal of the applicants' application, the parties provided written submissions on costs.

The respondents sought substantial indemnity costs, arguing the applicants came to court with unclean hands and adopted a retaliatory approach.

The court agreed, finding the applicants' conduct warranted elevated costs, and awarded the respondents $20,311.48 on a substantial indemnity scale.

The Applicants sought multiple mandatory and permanent injunctions against the Respondents concerning alleged encroachments (deck, fence, underground posts) on a common right-of-way and restrictive covenant.

The court first appointed a litigation guardian for one respondent suffering from dementia.

The court dismissed the application for injunctive relief, finding insufficient evidence of substantial interference with the right-of-way's purpose as a common walkway.

Furthermore, the court noted the Applicants did not come with clean hands, having previously restricted the right-of-way themselves and adopting a retaliatory approach.

This decision addresses the costs arising from a successful motion by the plaintiff to amend her statement of claim and the dismissal of the defendant Kealey's motion to strike.

The plaintiff sought costs, arguing the motions were necessary due to the defendant's refusal to consent to amendments and that she had made a without-costs settlement offer.

The court found the plaintiff was the successful party and that her motion to amend was necessary.

The defendant Kealey was ordered to pay the plaintiff's costs, fixed at $7,500.

The appellant corporation sought to overturn a lower court decision that dismissed its trespass claim and granted the respondent a declaration of title through adverse possession over encroachments created by a parking platform built on the respondent's land.

The platform's support timbers encroached onto the appellant's roadway and drainage area.

The Court of Appeal upheld the lower court's decision, finding that the respondent had established all three elements of adverse possession: actual possession for the statutory period, intention to exclude the true owner, and discontinuance of possession by the owner.

The court rejected the appellant's arguments regarding a modified test for adverse possession in cases involving pre-existing easements and found that the encroachments were trifling and did not warrant injunctive relief.

The plaintiff, Dias, brought a motion to amend her statement of claim to substitute David Kealey for "John Doe" and to plead particulars of negligence.

Kealey opposed, arguing the proposed amendments introduced a new, time-barred cause of action and that the original pleading failed to disclose a reasonable cause of action against him.

The court applied the "plain and obvious" test for striking pleadings, finding that the original statement of claim, read generously, contained a sufficient factual matrix to support a negligence claim against Kealey, particularly given allegations of his intoxication leading to injury.

The court dismissed Kealey's motion to strike and granted Dias's motion to amend.