Paul J. Daffern

The decision addresses two competing motions for the appointment of representative counsel for investors in a receivership proceeding involving Sussman Mortgage Funding Inc. The court reviews the procedural background, the need for representative counsel, and the competing proposals from Aird & Berlis LLP and Paliare Roland Rosenberg Rothstein LLP.

The court ultimately appoints Aird & Berlis LLP as representative counsel, finding their approach and fee structure preferable for efficiency, transparency, and certainty.

This decision concerns three related matters: the appointment of a receiver over the assets of Sussman Mortgage Funding Inc. and related companies, the granting of a Mareva injunction against Sanford Sussman, and the scheduling of a motion to appoint representative counsel for investors.

The court finds the appointment of B. Riley Farber Inc. as receiver to be in the public interest and grants the Mareva injunction on consent.

The decision addresses the statutory and common law bases for receivership, the public interest in protecting investors, and the coordination of proceedings involving multiple stakeholders.

Following successful motions to strike the plaintiffs' $5 million claim as statute-barred, the defendants sought their costs on a partial indemnity basis.

The plaintiffs argued the requested amounts were disproportionate and suggested a combined award of $10,000.

The court reviewed the complexity of the historical claims, the extensive document retrieval required, and the plaintiffs' conduct which prolonged the proceedings.

Applying the principles of reasonableness and proportionality, the court awarded costs of $85,000 to each defendant.

The plaintiffs commenced an action in 2020 alleging breach of an airport lease and negligent misrepresentation regarding a lease extension promised between 1985 and 1995.

The defendants moved to strike the claims under Rule 21.01(1) as statute-barred.

The plaintiffs argued the Real Property Limitations Act applied or that the breaches were ongoing.

The court rejected these arguments, finding the claims were subject to the Limitations Act, 2002 and the former Limitations Act.

The court held it was plain and obvious that the plaintiffs discovered their claims between 1999 and 2013, well beyond the applicable limitation periods.

The action was dismissed without leave to amend.

The applicant, The District Municipality of Muskoka, sought a declaration that a lease agreement with the respondent, David Gronfors, had validly terminated and an order for vacant possession of airport premises.

The respondent argued the lease had not expired, that the Ontario Superior Court lacked jurisdiction due to the airport context (federal law), and that a forum selection clause mandated the Federal Court.

The court found that the provincial Commercial Tenancies Act applied, exercised its discretion to hear the case despite the forum selection clause, and determined the lease had indeed expired on October 31, 2023, based on clear lease terms and the respondent's prior inconsistent representations in other litigation.

A writ of possession was ordered.

The applicant sought directions in an application to set aside her mother's will for incapacity and undue influence, and to contest a property transfer.

The motion was adjourned on consent, but the applicant's request for specific adjournment terms, including freezing a condominium property, was denied.

The court criticized the applicant's counsel for unilateral scheduling, lack of civility, and overreaching demands, ordering the applicant to pay the respondents' costs thrown away.

The Proposal Trustee brought a motion under s. 65.13 of the Bankruptcy and Insolvency Act to approve the sale of two licensed retirement homes owned by the insolvent debtors.

The second mortgagee opposed the sale, arguing the sales process was flawed, the price was below market value, and it was denied the opportunity to properly value the properties.

The court found the sales process was reasonable given the debtors' insolvency and the imminent expiration of their operating licenses.

The court also found the sale price was fair based on independent appraisals and granted the motion to approve the sale, along with a sealing order over the appraisal exhibits.

This is an appeal by a father from a trial order regarding child support, retroactive child support, a charging order, and costs.

The trial judge imputed income to the father due to his failure to disclose and efforts to conceal income, awarded retroactive support, and secured obligations with a charging order.

The Court of Appeal dismissed the father's appeal, upholding the trial judge's imputation of income, the retroactive child support award (consistent with the new Colucci framework), and the charging order, finding no palpable and overriding errors or jurisdictional issues.

Leave to appeal the costs order was also denied, as the trial judge's discretion was properly exercised given the father's conduct.

The applicant wife brought a motion for interim spousal support from the respondent husband.

The court addressed the issues of commencement date and quantum of support, finding the wife's evidence more credible than the husband's, particularly regarding his income and extensive business interests.

Due to the husband's lack of transparent financial disclosure and the family's high-end lifestyle, the court imputed a significantly higher income to the husband than he declared and ordered him to pay interim spousal support.

Following a successful Motion to Change regarding child support and income determination, the applicant mother sought costs.

The court found the mother was the successful party and that the father's unreasonable conduct regarding financial disclosure significantly increased the litigation costs.

The court awarded the mother costs of $204,913.81 on an elevated partial indemnity scale to reflect the father's unreasonable conduct.

Following a trial of competing motions to change, the court found a material change in circumstances based on significantly increased payor income and altered parenting arrangements.

The court rejected the respondent's financial disclosure as unreliable, imputed and averaged income using source-and-use analysis, corporate benefits, personal expenses paid through business, income-splitting, and adverse inferences arising from non-disclosure.

Child support was recalculated, including under s. 9 of the Federal Child Support Guidelines for shared parenting periods, but the court used a simple set-off because the expense evidence was too vague for a fuller Contino analysis.

Retroactive child support was awarded from August 1, 2016 in the amount of $222,484, ongoing support was fixed at $6,671 per month, section 7 expenses were apportioned 13/87, and the support obligations were secured against real property and corporate interests.

The plaintiff purchased a farm property from the defendant vendors.

After closing, she discovered severe latent defects, including a history of basement flooding, a failed septic system, and that the house additions and garage were built without building permits.

The plaintiff sued the vendors for breach of contract and negligent misrepresentation, and her title insurer for breach of contract after it denied coverage.

The court found the vendors liable for actively concealing defects and acting with reckless disregard.

The court also found the title insurer liable, holding that the lack of permits and unsafe building orders were covered risks under the policy.

The plaintiff was awarded damages for the full replacement cost of the structures, special damages, general damages for mental distress, and punitive damages against the vendors.

The title insurer was held jointly and severally liable for the replacement costs and special damages, but was granted full indemnity from the vendors.

The defendant brought a motion for security for costs under Rule 56.01(1)(d), arguing there was good reason to believe the corporate plaintiff had insufficient assets in Ontario to pay a costs award.

The court found the defendant failed to meet the initial low threshold, as the plaintiff's representative was never asked directly about the corporation's assets or financial statements during discovery.

The motion was dismissed.

Following a judgment obtained after a defendant’s statement of defence was struck for failure to answer undertakings from an examination for discovery, the plaintiffs sought substantial indemnity costs exceeding $130,000.

The court considered the governing principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing fairness, reasonableness, and proportionality.

The court held that substantial indemnity costs were not justified because there had been no determination on the merits and no exceptional conduct warranting such a scale.

Several items in the bill of costs were disallowed or reduced, including motion-related costs already awarded, excessive hourly rates, and travel time billed at full rates.

Applying proportionality and reasonable expectations of the losing party, the court fixed costs at $45,000 inclusive of disbursements and HST.

In a dispute arising from the sale of development land subject to a 27-lot draft plan of subdivision, the vendor alleged breach of fiduciary duty and contract after its dual real estate agent became an undisclosed shareholder of the purchaser before closing.

The court found the agent and brokerage owed fiduciary duties, failed to provide the written disclosure required by the Real Estate and Business Brokers Act, and were required to disgorge the commissions paid on closing.

The court also awarded the vendor the disputed $100,000 vendor take-back mortgage credit paid into court, with 7% simple interest, but refused claims to subsequent commissions and punitive damages.

On the counterclaim, the purchaser recovered mortgage refinancing and related legal costs caused by the vendor's lack of cooperation, but failed on broader claims for development and road costs; punitive damages of $10,000 were awarded against the vendor and its principal for misconduct surrounding an ex parte certificate of pending litigation.

The plaintiff brought a motion relating to outstanding undertakings and refusals arising from extensive examinations for discovery of a defendant.

The court reviewed numerous undertakings and determined that several had been satisfactorily answered, while others required reproduction of documents in an organized format to properly address the undertakings.

The court also ordered disclosure of certain financial documents relevant to claims for accounting and disgorgement.

However, the court declined to compel any further examinations, finding that five days of discovery and thousands of questions already rendered the process disproportionate under the Rules of Civil Procedure.

Following competing motions for security for costs, the court ordered the plaintiff to post security and dismissed the plaintiff’s own motion for security.

The defendants sought costs of $18,618.92 while the plaintiff argued the amount should be reduced due to duplication of effort after the defendants changed counsel and allegedly excessive preparation and travel charges.

Applying the discretionary principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized proportionality, fairness, and reasonableness in fixing costs.

The court found some duplication attributable to the change of counsel and considered the limited scope of the half‑day motion.

Costs were fixed at $14,000 all inclusive payable by the plaintiff.

The appellants appealed an interlocutory order that struck their claim against a corporate representative personally and imposed conditions on an injunction restraining mortgage enforcement.

The Court of Appeal dismissed the appeal, finding that the pleadings disclosed no personal cause of action against the representative and that the motion judge properly exercised his discretion in requiring the appellants to pay renewal fees and monthly mortgage payments as a condition of equitable relief.

The appellant appealed a final order awarding the respondent retrospective and prospective child and spousal support, as well as costs.

The Court of Appeal dismissed most grounds of appeal, finding no error in the motion judge's decisions not to impute income to the respondent, to order support retroactive to May 2005, and to award $5,000 in child support arrears.

However, the Court found the motion judge erred by failing to provide reasons for awarding $2,000 monthly in spousal support for periods when the respondent was earning income.

The Court varied the spousal support to $1,700 monthly for the period the respondent earned income, upheld the $2,000 monthly award for the period she was unemployed, and reduced the costs award from $8,000 to $7,000.

The minor plaintiff was allegedly attacked by the insureds' son on school property.

The plaintiff sued the son for intentional torts and the parents for negligent supervision.

The parents' homeowner's insurer denied coverage and refused to defend the action, relying on an exclusion clause for intentional or criminal acts by 'any person or any named insured'.

The parents successfully brought a motion for summary judgment declaring the insurer had a duty to defend them.

The insurer appealed.

The Court of Appeal dismissed the appeal, finding the exclusion clause ambiguous as to whether the intentional act of one insured excluded coverage for all insureds, including those sued in negligence.

The ambiguity was resolved in favour of the insureds.