Peter H. Smiley

In a receivership proceeding, a non-party, Money Gate Corporation (MGC), brought a motion seeking a distribution of $1,159,517.66 from the proceeds of the sale of a property, claiming to be the assignee of a second mortgage.

The motion was opposed by the property owner and the holder of subsequent charges.

The court dismissed the motion, finding that MGC failed to prove it used its own funds or funds raised from private investors to purchase the assignment.

Furthermore, MGC's failure to register the transfer under the Land Titles Act meant it did not have priority over subsequent registered charges.

The respondent brought a motion for security for costs in the amount of $39,350 regarding the appellants' appeal of a decision dismissing their negligence action for failure to pay outstanding costs orders.

The appellants argued the costs orders were illegitimate and stayed pending a leave application to the Supreme Court of Canada.

The court rejected these arguments, finding the requirements for security for costs were met under Rule 56.01(1)(c) due to the unpaid costs orders.

The motion was granted, and the appellants were ordered to post security for costs.

In a case management endorsement for an appeal, the court addressed several procedural issues.

The appellants' Notice of Constitutional Question was struck out as frivolous and vexatious under Rule 2.1.

The court also settled the orders of the late Associate Justice Muir, as he was unable to do so, and provided directions for settling the orders of Associate Justice Jolley.

The appellants abandoned their motion to adduce fresh evidence, and the respondent's motion for security for costs was heard and taken under reserve.

The defendants moved to set aside a noting in default, which the plaintiff did not substantively oppose but contested on costs.

The court granted the motion, finding the defendants' delay in defending was adequately explained and they had arguable defences.

The court also ordered the plaintiff to pay the defendants' partial indemnity costs of the motion, deeming the plaintiff's refusal to consent to setting aside default without substantial indemnity costs for a prior ex parte substituted service motion unreasonable and an abuse of process.

The defendant brought a motion to dismiss the plaintiffs' action due to their failure to pay four outstanding costs orders totaling $21,350.

The self-represented plaintiffs argued the costs orders were stayed pending a constitutional challenge and were the result of a fraud and conspiracy involving the defendant's counsel, the Law Society of Ontario, and LawPro.

The court rejected the plaintiffs' arguments, noting their conspiracy claims had been repeatedly dismissed by other courts and that they explicitly refused to pay the ordered costs.

The court granted the motion and dismissed the action to protect the administration of justice.

The appellants, a web development business and its principal, appealed a summary judgment that dismissed their action against a financing company and granted judgment against them for $82,250.

The appellants alleged procedural unfairness, unsuitability for summary judgment, an incorrect outstanding loan amount, and sought to introduce fresh evidence.

The Court of Appeal dismissed the appeal, finding no procedural unfairness as the appellants had proper notice and their absence from the motion was tactical.

The court upheld the motion judge's decision on the merits, finding the action in debt well-suited for summary judgment, and refused to admit the proposed fresh evidence, deeming it available with reasonable diligence or not credible.

The moving parties sought to set aside an order of a single judge of the Court of Appeal that denied them an extension of time to appeal.

The underlying appeal concerned a motion to remove opposing counsel from the record, which had been dismissed.

The Court of Appeal dismissed the motion to set aside, confirming that the underlying order was interlocutory and therefore the Court of Appeal had no jurisdiction to hear the appeal.

The moving parties sought an extension of time to perfect a motion to review an order of a single judge of the Court of Appeal.

The underlying order refused to direct the Registrar to accept a notice of appeal from a Superior Court decision, on the basis that the Superior Court decision was interlocutory.

The Court of Appeal dismissed the motion for an extension of time, finding no arguable merit to the review motion because the underlying orders—refusing to remove counsel, refusing to appoint a receiver, and refusing to declare non-parties vexatious litigants—were all interlocutory and therefore not appealable to the Court of Appeal.

Following the dismissal of the plaintiffs' appeal and motions, the court determined the scale and quantum of costs.

The court found that the plaintiffs' conduct, which included baseless allegations of fraud, conspiracy, and criminal conduct against the defendant's counsel, LawPro, and the LSO, was reprehensible, scandalous, and outrageous.

Consequently, the court awarded substantial indemnity costs to the successful parties, fixing the amounts at $12,000 for the defendant, $9,000 for LawPro, and $7,500 for the LSO.

The moving party brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $3,050.08.

The defendants, Morteza Katebian and Payam Katebian, brought a motion to dismiss the plaintiff's action due to the plaintiff's failure to comply with three prior costs orders, including an order for additional security for costs.

The plaintiff argued the action had considerable merit, they were impecunious, and funds were frozen due to ongoing litigation.

The court found the plaintiff's claim of considerable merit unconvincing and their impecuniosity argument belated.

While acknowledging the severity of dismissal, the court granted the plaintiff a final opportunity until April 1, 2021, to comply with the outstanding costs orders, failing which the defendants could move for dismissal without notice.

The Hordos (plaintiffs/appellants) appealed a Master's decision dismissing their motion for various relief, including removal of the defendant's counsel, discovery-related orders, and striking pleadings.

They also brought a Rule 59.06 motion to set aside the Master's order based on alleged fraud and fresh facts, and a motion for extraordinary relief such as interim costs, declaring LawPro and LSO vexatious litigants, and appointing a receiver for the LSO.

The court dismissed all of the Hordos' appeals and motions, finding no palpable and overriding error in the Master's decision, no evidence of fraud or material fresh facts to set aside the order, and no legal basis for the extraordinary relief sought.

The court affirmed the Master's finding that the Hordos' conspiracy theory was baseless.

The moving party, Hazelton Homes Corporation, brought a motion for leave to appeal the orders of Faieta J. dated May 28, 2020 and June 6, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties.

The plaintiffs alleged that the defendant, an officer of their corporation, fraudulently and without authorization registered two mortgages against their properties.

They also sued the lawyer who registered the mortgages for negligence and the mortgagees for relying on the mortgages despite alleged red flags.

The court dismissed the action, finding that the officer had actual authority to bind the corporation under its by-laws, the plaintiff was aware of and benefited from the mortgages as part of a scheme to avoid foreign creditors, the lawyer met the standard of care, and the mortgagees were protected by the indoor management rule and the Land Titles Act.

ICapital Financial Services Corp. brought a motion for summary judgment seeking dismissal of the main action by Alireza Ghasempoor and judgment on its counterclaim against Ghasempoor and third-party claim against Atciti Corp. The court dismissed Ghasempoor's action, finding no genuine issue requiring a trial regarding his claims of damaged credit rating and unreasonable payment demand.

The court granted summary judgment to ICapital on its counterclaim and third-party claim, finding Atciti Corp. defaulted on a loan agreement, triggering Ghasempoor's personal guarantee.

Judgment was awarded for $82,250.00 plus pre- and post-judgment interest, and costs were fixed.

The 87-year-old defendant, who had significant health issues, brought a motion to give his evidence before trial outside of court and to present his evidence-in-chief by way of affidavit.

The plaintiff consented to the pre-trial video examination but opposed the use of an affidavit, arguing it would be 'counsel created evidence' and unfair in a case where credibility was central.

The court granted the motion, finding that the plaintiff's concerns could be adequately addressed through cross-examination and that the accommodation was appropriate given the defendant's health.

The moving parties brought a motion for leave to appeal the order of Penny J. dated December 20, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the fixed amount of $4,762.00.

Hazelton Homes Corporation (Plaintiff) claimed beneficial ownership of two properties registered to Morteza Katebian, who had defaulted on mortgages held by Home Trust Company and Ivan Terziev and Elena Mechtcheriakova (Second Mortgagees).

Following the conversion of applications into an action, the defendants (Katebian, Payam, Home Trust, and Second Mortgagees) moved for security for costs against Hazelton.

The court found good reason to believe Hazelton's claim against Home Trust and the Second Mortgagees was frivolous and vexatious, and that Hazelton, a shell corporation, had insufficient assets.

The motion for security for costs was granted for Home Trust and the Second Mortgagees, with specific amounts ordered to be paid into court or credited from existing holdbacks.

Katebian and Payam's motion for security for costs was adjourned pending their delivery of a Statement of Defence.

This decision addresses the costs of a motion brought by the self-represented plaintiffs, Diana Hordo and Michael J. Hordo, against the defendant, Arnold H. Zweig, and non-parties LawPro, the Law Society of Ontario (LSO), Lynda Ciaschini, and Charles Sinclair.

The plaintiffs' motion, which sought various forms of relief including the removal of the defendant's counsel and production of documents, was largely dismissed, with only a minor order granted for additional written discovery questions for the defendant.

The court found that the plaintiffs made serious, unproven allegations of misconduct, including criminal behaviour and dishonesty, against the defendant, his counsel, and LSO.

Consequently, the court awarded substantial indemnity costs to the defendant ($8,000.00) and LSO ($4,500.00), to be paid by the plaintiffs, citing the reprehensible nature of the unproven allegations.

The defendant brought a motion to set aside an ex parte Mareva order obtained by the plaintiff, which froze the proceeds of the sale of a property.

The defendant argued that the plaintiff failed to make full and fair disclosure of material facts, specifically regarding a 'secret' trust agreement and the plaintiff's lack of assets to satisfy its undertaking as to damages.

The court agreed, finding that the plaintiff's failure to disclose that the trust agreement was not public and that the plaintiff was a shell company without assets constituted material non-disclosures.

The court set aside the ex parte order.