Philip Holdsworth

The plaintiff credit union sought judgment against the defendant spouse for the net sale proceeds of a condominium previously owned by her former husband.

The husband's mortgage with the plaintiff had been mistakenly deleted from title, and upon the sale of the property, the proceeds were transferred to the defendant spouse's bank account.

The court found the transfer was a fraudulent conveyance made with the intent to defeat creditors, as there was no good consideration and the purported matrimonial settlement was not bona fide.

The court declared the transfer void and granted a tracing order under the Assignments and Preferences Act, awarding judgment to the plaintiff.

The plaintiff, a condominium resident, sought statutory and tort-based injunctive and declaratory relief against the defendant, an underground venue operating in his building.

The plaintiff alleged the venue was operating as an unlicensed nightclub, causing severe noise and vibrations constituting a nuisance.

The court found that the defendant was indeed operating as an "entertainment establishment/nightclub" without the proper license, based on its functional activities (e.g., providing dance facilities, minimal seating, ancillary food sales) despite being licensed as an "eating or drinking establishment." The court granted a declaration to this effect and issued both a statutory injunction requiring the defendant to cease operations in contravention of its licensing status, and an interim/interlocutory injunction based in tort, prohibiting the emission of sound audible beyond the lot limit between 10:00 p.m. and 9:00 a.m.

The respondent (1000093910 Ontario Inc.) brought an urgent motion for the court to sign a draft order including a provisional execution, which was opposed by the prospective purchaser (2557904 Ontario Inc.).

The purchaser had filed an appeal and sought a stay of a prior endorsement.

The court considered the urgency due to significant daily costs and an expiring financing offer.

The court affirmed its jurisdiction under section 195 of the Bankruptcy & Insolvency Act to grant provisional execution, rejecting the purchaser's arguments that such relief was not properly requested or that jurisdiction lay solely with the Court of Appeal.

Balancing the irreparable harm, the court found that the prejudice to the applicant (Peakhill Capital Inc.), respondent, second mortgagee, and guarantors if provisional execution was not granted outweighed the harm to the purchaser.

The motion for provisional execution was granted.

The applicant sought an order for the forfeiture of a $62,000 deposit from the respondent assignee, Ke Ma, and its release from the brokerage, Homelife Best Choice Realty Inc., Brokerage, following the non-completion of an assignment agreement for a pre-construction property.

The court found that while the applicant failed to fully satisfy a condition precedent (obtaining the vendor's written consent in the required form), the respondent assignee breached her contractual obligation to cooperate by failing to communicate objections to the vendor consent form in a timely manner.

This breach prevented the condition from being cured and fulfilled.

Consequently, the respondent's default led to the forfeiture of the deposit as per the terms of the assignment agreement.

The plaintiffs, Lightspeed Commerce Inc. and Lightspeed Payments USA Inc., brought an ex parte motion for a Mareva injunction against the defendants, Nurzan Najeebdeen, Spice Nadu Inc., and Eco Care Maintenance Inc., and a Norwich order against third-party financial institutions.

The motion arose from two alleged fraudulent schemes: a "bust-out" sales scheme involving chargebacks on "card not present" transactions (approx. $293,802.20) and an "unreferenced refunds" scheme exploiting a system vulnerability (approx. $6,501,376.79).

The court found a strong prima facie case of fraud, a real risk of asset dissipation, and that irreparable harm would occur without the injunction.

The court also found the Norwich order necessary to trace funds and identify unknown cardholders.

Both the Mareva injunction and Norwich order were granted.

The defendant, Trez MR Holdings (Ontario) Ltd., brought a motion for security for costs.

The motion was dismissed without prejudice, for the same reasons set out in a related proceeding (CV-21-943).

Given the divided success on the entirety of two motions, the court ordered that each party bear their own costs, resulting in no costs awarded.

The defendant/plaintiff by counterclaim, Trez MR Holdings (Ontario) Ltd. ("Trez"), brought a motion seeking leave to bring a motion for security for costs against the plaintiff/defendant by counterclaim, Probert Construction Inc. ("Probert"), in two related construction lien actions.

Trez argued there was good reason to believe Probert had insufficient assets in Ontario to cover costs, citing unpaid subcontractors and delays in prosecution.

Probert countered that it had ongoing projects and assets, and that the existence of liens alone was not proof of insufficiency.

The court found that Trez's evidence did not rise above mere speculation and failed to establish "good reason to believe" Probert had insufficient assets.

Consequently, leave to bring the motion for security for costs was refused, and the motion was dismissed.

No costs were awarded due to divided success on the overall motions (examination issues were resolved prior).

In a receivership and bankruptcy proceeding, a dispute arose regarding the distribution of proceeds from the sale of a property.

The 259 Group, a second mortgagee, had previously settled a motion regarding the distribution of holdback funds, resulting in a consent order.

The Trustee and a third mortgagee argued that this settlement finally determined the amount of indebtedness owed to the 259 Group, barring them from making a further secured claim in the bankruptcy.

The court applied the doctrine of issue estoppel and interpreted the consent order, concluding that the settlement only resolved the priority of the holdback funds, not the total indebtedness.

Therefore, the 259 Group was not barred from making a secured claim to the Trustee.

The applicant sought a declaration of beneficial ownership of a condominium registered in the name of the deceased.

The applicant claimed he took over financial responsibility for the property prior to closing and that the deceased held it in trust for him.

The court dismissed the application, finding no written evidence of an express trust as required by the Statute of Frauds, and insufficient evidence to establish a purchase money resulting trust because the applicant failed to prove a gratuitous transfer.

The applicant sought a declaration that he was the beneficial owner of a condominium legally owned by the deceased.

He claimed an express trust agreement existed or, alternatively, a resulting trust arose because he made mortgage payments and managed the property.

The court dismissed the application, finding no written trust agreement to satisfy the Statute of Frauds and insufficient evidence of the deceased's intention to create an express trust.

The court also rejected the resulting trust claim, concluding there was no gratuitous transfer since the deceased assumed the mortgage risk and the applicant collected rental income.

The plaintiffs brought a motion for an interlocutory injunction to prevent the defendants from transferring or encumbering a partnership property without consent or court order.

The dispute arose after the plaintiff was disqualified as a partner for failing to satisfy a cash call, which he alleged was invalid.

The court characterized the requested relief as a mandatory injunction, requiring the plaintiffs to demonstrate a strong prima facie case.

The court found the plaintiffs failed to establish a strong prima facie case regarding the validity of an alleged oral agreement, the invalidity of the cash call, or oppressive conduct.

Furthermore, the plaintiffs failed to show irreparable harm, as damages would be an adequate remedy.

The motion for an injunction was dismissed.

The plaintiff moved for an order requiring the defendants to attend cross-examinations on their affidavits of documents prior to examinations for discovery, alleging the affidavits were deficient.

The court dismissed the motion, finding no persuasive evidence that additional documents existed or had been withheld.

The court held that the proper course was to proceed with the scheduled examinations for discovery and ask questions about documents there, rather than engaging in premature cross-examinations based on speculation.

This endorsement addresses the issue of costs following a successful motion by the defendants.

The defendants sought $200,000 in costs, arguing it was a discount from their partial and substantial indemnity costs, citing extensive motion records, witness evidence, cross-examinations, and rejected settlement offers.

The plaintiff requested costs be reserved to the trial judge or argued the claimed costs were excessive, noting their own partial indemnity costs were significantly lower.

The court declined to reserve costs, affirming the defendants' entitlement as successful parties.

However, the court found the defendants' claimed costs excessive, noting they were double the plaintiff's costs, and fixed the costs at $150,000, all-inclusive, payable within 30 days, emphasizing the need for costs to be reasonable in the circumstances.

The plaintiff, a former franchisee, brought a motion for summary judgment against the franchisor and its principal, alleging deficiencies in disclosure documents, fraud, and forgery, and seeking damages over $2,000,000.

The defendants opposed the motion, arguing numerous factual disputes and credibility issues.

The court dismissed the motion for summary judgment, finding that the case involved too many disputed issues of fact, including allegations of fraud and forgery, which required an assessment of credibility that could not be resolved on a paper record.

The court also noted that a complex legal issue regarding the effect of a notice of rescission required a full appreciation of the factual matrix, best achieved at trial.

The defendants brought a motion for leave under Rule 39.02(2) of the Rules of Civil Procedure to file two further affidavits on the plaintiff's pending summary judgment motion.

The affidavits were sought to be filed after cross-examinations had concluded, primarily to respond to the plaintiff's allegation that a franchise disclosure document was forged.

The court applied the four-part test for leave and found that the defendants failed to provide a reasonable explanation for not delivering the evidence earlier, noting it was a tactical choice rather than an oversight.

The court also found the proposed evidence did not respond to matters raised during cross-examination.

The motion for leave was dismissed.

The Canadian Imperial Bank of Commerce (CIBC) sought an interpleader order under Rule 43 of the Rules of Civil Procedure for approximately $25.7 million CAD and $69,000 USD.

These "Disputed Funds" were held in accounts related to cryptocurrency transactions facilitated by Costodian Inc. for QuadrigaCX, with some funds transferred to Jose Reyes's personal accounts.

CIBC froze the accounts due to an inability to determine the rightful entitlement among 388 depositors, Costodian, Reyes, Billerfy, and QuadrigaCX, and concerns about money laundering.

The respondents opposed the application, arguing there were no competing claims.

The court found a real foundation for competing claims, both among the respondents themselves and from the depositors, particularly noting the refusal of QuadrigaCX's CEO to confirm if depositors' online wallets had been credited.

The interpleader order was granted, directing the funds to be paid into court, but the court declined to extinguish CIBC's potential liability for its actions in freezing the accounts.

The plaintiff landlord brought a motion to amend its statement of claim against the defendant tenant, its corporate parent, and individual directors following the abandonment of a commercial lease.

The proposed amendments sought to pierce the corporate veil and allege that the corporate parent and individuals were the alter ego of the tenant.

The court denied the amendments relating to piercing the corporate veil, finding they lacked the requisite particulars and were mere 'window dressing' attempting to turn a breach of contract into a fraud claim.

However, the court allowed an amendment adding a claim under section 50 of the Commercial Tenancies Act, noting that its viability should not be determined at this preliminary stage.

The plaintiff sought an interim injunction against former employees and their new competing business, alleging breach of a confidentiality and non-solicitation agreement.

The court found the plaintiff established a prima facie case of breach, but dismissed the motion because the plaintiff failed to show it would suffer irreparable harm that could not be compensated by damages.