Philip C. Polster

The defendant brought a motion under Rule 59.06(1) to correct a prior order to state that her counterclaim was dismissed, relying on wording in a subsequent costs endorsement.

The court dismissed the motion, noting that the original judge had already refused to make the amendment and the Divisional Court had previously determined that the original order only dismissed the defendant's motion for summary judgment, not the counterclaim.

The defendant moved to set aside a default judgment and associated writs of execution, arguing improper service and that the credit card debts were corporate, not personal.

The court found the defendant was not properly served, thus setting aside the default judgment and noting in default.

However, the court dismissed the motion to lift the writs of execution, finding the defendant's proposed defence lacked an "air of reality" and that maintaining the security was necessary to preserve the integrity of the administration of justice given the weak merits of the defence and the defendant's delay.

The Court of Appeal reversed the trial judge's finding that the purchaser (241 Ontario) had actual notice of a defect in the power of sale process.

The trial judge had conflated actual knowledge with constructive knowledge, finding that receipt of information suggesting the need for inquiry constituted actual notice.

The appellate court clarified that actual notice requires actual knowledge of the defect itself, not merely knowledge of facts that might prompt inquiry.

The court held that 241 Ontario was a bona fide purchaser for value without notice and could rely on the protections of the Land Titles Act.

The court also found that sections 35 and 36 of the Mortgages Act do not limit the right to rely on registration under the Land Titles Act, and that these provisions provide complementary methods of protecting bona fide purchasers.

The post-sale mortgagees' interests were upheld, and Ginkgo's mortgage was found to be valid.

This endorsement addresses the costs of motions where The Toronto-Dominion Bank's motion for summary judgment was dismissed, and Mr. Froom's cross-motion for leave to amend his statement of defence, convert the action to ordinary procedure, and lift a writ of seizure and sale was granted in part.

The court found Mr. Froom, a self-represented litigant, had a greater degree of success.

Despite Mr. Froom's excessive claims for costs and disbursements, and lack of evidence for lost income, the court awarded him a reasonable allowance for disbursements and a nominal amount for his time, considering the principles of reasonableness and proportionality.

This costs endorsement follows a hybrid trial where the applicants were largely successful against several respondents concerning an invalid power of sale, but unsuccessful against Ginkgo Mortgage Investment Corporation.

The court awarded partial indemnity costs to the applicants against the unsuccessful respondents, with a several order for payment.

The court also fixed partial indemnity costs payable by the applicants to Ginkgo, declining to issue a Sanderson order after applying the two-step test.

The applicant, Ying Tsuen Tiao, brought an application to declare a fraudulent discharge of her first mortgage void and to rectify the land register by restoring her mortgage to its original first priority position.

The respondents, Dino Leone and Jeanette Leone, had fraudulently discharged the applicant's mortgage and subsequently registered new mortgages.

While the Director of Titles agreed to delete the fraudulent discharge, they argued the applicant's mortgage should be reinstated in a lower priority.

The court applied the theory of deferred indefeasibility, finding the Leones were fraudulent persons and the subsequent mortgagees were intermediate owners.

The court ordered the fraudulent discharge void and the applicant's mortgage restored to first priority, ahead of the subsequent mortgages.

The plaintiff Bank brought a motion for summary judgment regarding two credit card debts allegedly owed by the defendant personally.

The defendant, who was incarcerated in the United States, opposed the motion, arguing the credit cards were issued to his corporation and he was not personally liable.

The defendant also brought a cross-motion seeking to strike the claim, amend his defence to add a counterclaim, convert the action to the ordinary procedure, and lift a writ of seizure and sale.

The court dismissed the Bank's motion for summary judgment, finding that the Bank's failure to produce the signed cardholder agreements created a genuine issue of credibility requiring a trial.

The court granted the defendant leave to amend his defence, converted the action to the ordinary procedure because the claims exceeded the simplified procedure limit, and ordered the writ of seizure and sale lifted.

Subsequent mortgagees challenged the validity of a first mortgagee’s power of sale of a Toronto property, alleging they were never served with the required notice and that the notice misstated the amount owing under the mortgage.

The court found the notice of sale had not been served on the subsequent encumbrancers due to a mailing error and that the amount claimed owing was materially overstated through the improper inclusion of pre‑assignment expenses.

As a result, the statutory requirements of the Mortgages Act were not satisfied and the power of sale was invalid.

The purchaser was a bona fide purchaser for value but had actual notice that the validity of the sale was being challenged and therefore could not rely on statutory protections for “professed compliance.” The purchaser and related subsequent mortgagees did not obtain valid title or charges as against the applicants, though the independent first mortgagee lender retained a valid interest.

Following the granting of summary judgment dismissing the plaintiff’s action, the court determined the appropriate costs award.

The defendant sought substantial-indemnity costs, arguing that the plaintiff advanced serious but unsubstantiated allegations of theft and misconduct and engaged in conduct that increased litigation costs through numerous emails containing outlandish claims.

The court held that the seriousness and lack of foundation for the allegations justified a substantial‑indemnity approach.

Applying the principles in Boucher v. Public Accountants Council for the Province of Ontario and the factors under Rule 57, the court reduced the claimed amount and awarded a fair and reasonable lump-sum costs award.

The defendant Hamilton brought a motion to sever the issue of his liability from the damages assessment in a $20 million personal injury action arising from a boating accident.

The court found that the liability issue was straightforward and distinct from the complex damages assessment, which would require extensive medical evidence.

Applying the factors for bifurcation, the court concluded that severing liability would promote the just, most expeditious, and least expensive determination of the claim.

The motion was granted and the action was assigned to case management.

The appellant appealed a Small Claims Court decision dismissing his action for a share of corporate cash receipts following a successful motion for non-suit by the respondent.

The trial judge found that the appellant had not pleaded the agreement, had released the respondent in a prior Superior Court action, and that any claim belonged to the corporation.

The Divisional Court found no palpable or overriding error in the trial judge's decision and dismissed the appeal.

The defendants moved for summary judgment dismissing two related actions alleging fraudulent conveyances on the basis that the claims were barred by the two‑year limitation period under the Limitations Act, 2002.

The plaintiffs argued that the claims were timely due to discoverability, reliance on another creditor’s ongoing fraudulent conveyance action, and potential application of the Real Property Limitations Act or exceptions for declaratory relief.

The court held that issues of discoverability, whether the relief sought was purely declaratory, whether reliance on the prior action affected limitation analysis, and whether fraudulent concealment occurred all raised genuine issues requiring a trial.

The evidence could support the plaintiffs’ position that the limitation period either had not expired or might not apply.

Summary judgment was therefore inappropriate.

The appellant banquet hall appealed a Small Claims Court decision dismissing its claim for breach of contract and ordering the return of the respondents' $10,000 deposit.

The respondents had booked a wedding reception but sought to postpone it due to illness, which the appellant treated as a cancellation under the contract.

The Divisional Court allowed the appeal, finding the trial judge erred in law by failing to apply proper principles of contractual interpretation.

The contract clearly stipulated that a failure to proceed on the specific function date constituted a cancellation, entitling the appellant to retain the deposit and claim liquidated damages.

The moving party sought summary judgment dismissing negligence claims arising from a boating accident in which a child riding on an inner tube collided with the moving party’s boat.

The primary operator of the towing vessel had been noted in default, admitting negligence.

The court considered whether there was any evidentiary basis for potential negligence by the moving party and whether the action against him had no reasonable chance of success.

Finding inconsistencies between affidavit evidence and prior sworn testimony about the positioning and movement of the boat, the court held that issues of negligence and causation required a full evidentiary assessment.

Summary judgment was therefore inappropriate and the matter was ordered to proceed to trial.

The appellants appealed a summary judgment in favour of the respondent bank for mortgage, line of credit, and credit card debts.

The appellants argued that 'Bill-Consumer Purchases' documents they submitted were legal tender for their debts.

The Court of Appeal dismissed the appeal, finding that the documents had no commercial value and the debts remained unpaid.

Following the dismissal of the appeal, the court received written submissions on costs from the respondent.

The appellants did not submit costs submissions.

The court awarded the respondent costs of the appeal on a partial indemnity basis, fixed at $2,630.78 inclusive of disbursements and GST.

The Court of Appeal had previously adjourned the appeal on terms, directing that the appeal be dismissed if the terms were not met within 45 days.

As the appellants failed to meet the terms capable of performance within the specified time, the appeal was dismissed.

The court also set a schedule for written submissions on costs.

The appellant loaned the respondent $150,000 secured by a demand promissory note in 1997.

The last interest payment was made in 1998.

The appellant demanded repayment in 2004 and commenced an action in 2005.

The Court of Appeal held that the new Limitations Act, 2002 did not change the common law rule that a demand note matures upon delivery.

Applying the transition provisions in section 24(5), the court found the claim was discovered before January 1, 2004, meaning the former six-year limitation period applied.

The action was therefore statute-barred.