Philip 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.

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 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 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.