Philip C. Polster

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 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.

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.