Peter H. Smiley

The moving party sought leave to appeal the decision of Koehnen J. dated October 6, 2025.

The Divisional Court dismissed the motion for leave to appeal and awarded all-inclusive costs of $5,000 to the responding parties.

The respondents requested a stay of the applicant's proceeding under Rule 2.1 of the Rules of Civil Procedure, arguing that the applicant was seeking to intervene in a related mortgage enforcement action where the same issues would be resolved.

The court dismissed the request, holding that Rule 2.1 is intended for proceedings that are abusive on their face, not to stay one proceeding pending developments in another.

The court noted that any concerns about redundancy should be raised in the related action or through an ordinary motion for abuse of process or res judicata.

The proposed intervenor sought leave to intervene as an added party in the defendant's motion for leave to appeal a Mareva injunction.

The proposed intervenor argued he had an interest in the proceeding because the motion judge made significant adverse findings about his integrity and conduct, including allegations of operating a Ponzi scheme.

While the Divisional Court found the proposed intervenor had an interest in the subject matter, it declined to exercise its discretion to permit intervention.

The court noted that the defendant would likely advance the same arguments and the proposed intervenor would have other opportunities to defend his reputation in related ongoing litigation.

The motion to intervene was dismissed.

The plaintiff brought an action for breach of contract, breach of fiduciary duty, and unjust enrichment regarding a real estate joint venture.

The plaintiff had secured financing for the purchase of a property and was promised a 50% carried interest in the defendant corporation's share of the profits.

When the property was sold 10 years later, the defendant corporation distributed the majority of its profits to related parties, paying the plaintiff significantly less than his 50% entitlement.

The court found that the defendant breached the contract and its fiduciary duties, and that the related parties were unjustly enriched.

The court pierced the corporate veil to hold the individual defendant personally liable, awarding the plaintiff $1,297,500 in damages.

The defendants, a father and his common-law partner, brought motions to set aside an ex parte order granting the plaintiff son leave to register a Certificate of Pending Litigation (CPL) against their property, and to discharge the CPL.

The father also sought leave to register a CPL against a property he had previously transferred to the son.

The court set aside the ex parte order and discharged the CPL on the defendants' property, finding the son failed to make full and fair disclosure of material facts and had no triable claim to an interest in the land.

The court granted the father leave to register a CPL against the son's property, finding a triable issue of a resulting trust arising from the gratuitous transfer.

The moving parties brought a motion for leave to appeal a costs order.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $5,000 to the responding parties.

The plaintiffs brought a motion for a Mareva injunction to freeze approximately $6.1 million in settlement funds held in the defendant's solicitor's trust account.

The funds were allegedly derived from a fraudulent investment scheme involving the defendant corporation, which was controlled by individuals connected to a Ponzi scheme operated by Arash Missaghi.

The plaintiffs alleged they were induced to invest substantial sums through misrepresentation and fraud.

The court granted the Mareva injunction, finding the plaintiffs established a strong prima facie case of fraud, that assets were in the jurisdiction, that there was a risk of dissipation, and that irreparable harm would result if the funds were distributed.

The court also allowed the defendant to withdraw $250,000 from the frozen funds for legal expenses.

The court voided six promissory notes and struck out related mortgages registered by the plaintiffs against the defendants' properties, finding that the notes were materially altered without consent, contrary to the Bills of Exchange Act.

The court also declined to grant equitable mortgages or certificates of pending litigation, citing the plaintiffs' inequitable conduct and failure to meet statutory tests.

The decision addresses issues of forged notes, after-acquired property, corporate personality, and the application of the Family Law Act to matrimonial homes.

The court considered motions by the plaintiff to amend its statement of claim and by the defendants to strike the statement of claim.

The court found that, except for the claim of unlawful interference with contractual relations, the plaintiff’s amended claim disclosed the material elements of the causes of action pleaded, including breach of confidence, fraudulent misrepresentation, conspiracy, inducing breach of contract, and piercing the corporate veil.

The court dismissed the defendants’ motion to strike, allowed the plaintiff’s motion to amend (except for the unlawful interference claim), and awarded costs to the plaintiff.

The plaintiff, an executive search firm, sued the defendant for breach of contract and breach of the duty of honesty and good faith related to a search for a Chief Financial Officer.

The defendant, a defunct company, did not take a position at the summary trial.

The court found the defendant breached the contract by failing to make a required payment and breached the duty of honesty and good faith by misleading the plaintiff and not allowing the search to conclude.

Damages of $67,000 plus interest and costs of $17,832.74 were awarded to the plaintiff.

The self-represented appellant filed a motion for leave to appeal three Superior Court orders relating to costs and the discharge of construction liens.

The Divisional Court issued a notice under Rule 2.1.02 of the Rules of Civil Procedure, considering whether to dismiss the motion as frivolous, vexatious, or an abuse of process.

Finding that the appeals lacked merit, the appellant had over $125,000 in unpaid costs orders, and the litigation history demonstrated a clear abuse of process, the court dismissed the motion for leave to appeal and barred further motions until all outstanding costs are paid.

The appellant, Money Gate Corporation, appealed the dismissal of its motion seeking distribution of proceeds from a property sale, asserting an unregistered assignment of a second mortgage.

The motion judge found the appellant failed to provide sufficient evidence regarding the source of funds for the alleged assignment, concluding no enforceable assignment was acquired.

The Court of Appeal found no error in the motion judge's decision to dismiss the motion or in the discretionary costs order, noting the appellant's failure to file a cost outline.

The appeal was dismissed with costs awarded to the respondents.

The moving parties sought reconsideration of a prior decision by the Court of Appeal dismissing their appeal, presenting new evidence.

The court dismissed the motion for reconsideration, affirming that such requests are granted only in very exceptional cases and that the new evidence did not undermine the basis for the original appeal dismissal.

Costs were awarded to the responding party.

The plaintiff, Tripsetter Inc., brought a motion seeking leave to add Tweed Inc. and Jurgen Schreiber as defendants, alleging they are "franchisor's associates" under the Arthur Wishart Act (Franchise Disclosure), 2000.

The proposed defendants objected, arguing the claim was out of time due to a lack of notice of rescission and that the proposed pleading failed to establish the necessary control for a franchisor's associate.

The court found that the Act does not require notice of rescission to be given to an alleged franchisor's associate for a claim for damages to proceed.

It also determined that the limitation period argument was not clear-cut and could be argued at trial, as the plaintiff's knowledge of Tweed's full involvement only came to light during discovery.

The court found the proposed pleading, including the "de facto franchisor" concept, to be sufficient for the purpose of a pleadings amendment motion, noting that amendments are to be read generously.

The appellant corporation appealed a partial summary judgment enforcing a mortgage against its property.

The appellant argued the mortgage was a 'fraudulent instrument' under the Land Titles Act because the individual who executed it had fraudulently assumed control of the corporation.

The Court of Appeal dismissed the appeal, holding that the mortgage was not a forgery, the corporation was not a 'fictitious person', and the individual did not falsely hold herself out as the registered owner.

The doctrine of deferred indefeasibility did not invalidate the mortgage, and partial summary judgment was appropriate.

The plaintiff, Tripsetter Inc., brought a motion seeking a further and better affidavit of documents from the defendants, 2161907 Alberta Ltd., Canopy Growth Corporation, and Justin Farbstein, and answers to undertakings and a refusal.

The core dispute concerned whether the parties' relationship was a franchise or a license, impacting disclosure obligations under the Arthur Wishart Act.

The court ordered the production of a Franchise Disclosure Document and a Financial Projections Document, finding them relevant to the nature of the relationship and the defendants' disclosure exemption arguments.

However, the plaintiff's general request for a further affidavit of documents and its requests regarding the undertakings and refusal were dismissed.

Costs were awarded to the plaintiff.

The defendants brought a motion to compel the plaintiff's representative to reattend discovery and answer numerous refused questions across four categories.

The plaintiff opposed the motion, arguing the questions were irrelevant or privileged.

The court largely upheld the plaintiff's refusals, finding most questions irrelevant to the core issues of the case, such as the nature of the business relationship (franchise vs. license) or the plaintiff's subjective understanding of legal requirements.

Only one minor question regarding inventory was ordered to be answered.

This appeal addressed whether the trial judge erred in declining to pierce the corporate veil to hold a personal defendant liable for a corporation's breaches of contract.

The Court of Appeal affirmed that piercing the corporate veil is an exception, particularly in commercial settings where parties understood they were contracting with a corporation.

The court found that the corporate defendant's "unreasonable" and "capricious" breaches of contract did not amount to "improper conduct" sufficient to justify piercing the veil, as doing so for every breach by a one-person company would undermine corporate separateness.

The cross-appeal was dismissed.

Money Gate Corporation (MGC) brought a motion for an extension of time to file its notice of appeal and a declaration that it had an appeal as of right under s. 193(c) of the Bankruptcy and Insolvency Act (BIA), or alternatively for leave to appeal under s. 193(e).

The underlying matter involved a receivership where a motion judge had dismissed MGC's claim for payment from the proceeds of a property sale, finding no valid assignment of a second mortgage and that MGC was not the registered owner.

The Court of Appeal granted the extension of time, finding MGC's grounds of appeal not frivolous and no real prejudice to the responding parties.

Crucially, the court declared that MGC had an appeal as of right under s. 193(c) of the BIA, concluding that the motion judge's order finally determined MGC's economic interests in the property proceeds, distinguishing it from a mere priorities dispute.

Following the dismissal of a motion brought by Money Gate Corporation, the successful responding parties sought costs. 2399029 Ontario Inc. and World Corporation Inc. sought substantial indemnity costs of $185,687.19 due to unsubstantiated allegations of fraud, which Money Gate Corporation did not dispute in principle but argued were inflated.

The court reduced the claimed amount due to unnecessary work and fixed costs at $160,000 on a substantial indemnity scale.

Curah Capital Corporation was awarded its requested $12,024 on a partial indemnity scale.