Rahul Kesarwani

The Toronto-Dominion Bank (TD) brought an application for immediate possession of a condominium due to default on a charge.

The registered owner, Sandra Andrade, and an occupant, Sesanarine Singh, are involved in a separate fraud dispute over the property.

Singh claims beneficial ownership via a trust agreement and argues TD had actual notice of his interest, which would affect TD's priority.

The court found triable issues regarding Singh's beneficial interest and, crucially, whether TD had actual notice of it.

The application for immediate possession was not granted; instead, the court directed a trial of an issue solely on the question of TD's actual notice.

Interim orders were made for Singh to make ongoing mortgage and condo fee payments, and case conferences were directed for both the TD-Singh dispute and the Andrade-Singh dispute.

This decision addresses the issue of costs following a prior judgment where the applicant, We Care Funding Limited Partnership (WCF), was granted the right to pay out the respondent, 1569635 Ontario Limited (156), for its 50% interest in a second mortgage.

Both parties sought costs.

The court found 156 to be the more successful party, having resisted WCF's initial incorrect capacity claim and ultimately recovering a greater amount than WCF had offered.

While 156 sought substantial indemnity costs based on contractual terms, the court denied this, finding the legal fees were incurred to resist the payout, not to enforce security as contemplated by the mortgage terms.

The court awarded 156 costs on a partial indemnity scale, fixed at $45,000 all inclusive.

The applicant, We Care Funding Limited Partnership (WCF), sought an order to compel the respondent, 1569635 Ontario Limited (156), to discharge or assign its 50% share in a second mortgage on two properties.

WCF, holding the first and third mortgages, argued its entitlement as a subsequent encumbrancer. 156 disputed WCF's standing and the amount owing, including claims for a lender's fee and a prepayment penalty.

The court found WCF had standing as a subsequent encumbrancer and determined the proper amount owing to 156, disallowing the lender's fee and the prepayment penalty.

The plaintiff mortgagee brought a summary judgment motion to enforce mortgage debts and seek possession of a commercial property after the defendants defaulted.

The defendants argued the motion should be dismissed because the plaintiff failed to initially adduce the standard charge terms, engaged in negotiations that invalidated the Notice of Sale, and included amounts in the Notice of Sale that violated the Interest Act.

The court rejected these arguments, finding the standard charge terms were known to the parties, the negotiations did not constitute enforcement steps, and while the Notice of Sale contained accounting errors (including an improper 24% holdover interest rate), these defects did not invalidate the notice or preclude summary judgment.

The court granted summary judgment for the principal amounts, adjusted interest rates, and allowable fees, and issued an order for possession.

The applicant, Indira Sampath, and respondent, Sandra Deopersad, brought motions concerning the distribution of net refinancing proceeds from a residential property.

Equitable title to the property was held 60% by Sampath and 40% by Sirju Deopersad (Sandra's ex-spouse).

Sandra Deopersad sought to apply Sirju's 40% share to his outstanding judgment debt to her.

Sampath's cross-motion sought reimbursement from Sirju for his share of carrying costs based on unjust enrichment.

The court granted Sandra Deopersad's motion, calculating Sirju's net share after specific transactional cost deductions, and dismissed Sampath's cross-motion, finding that her unjust enrichment claim was not properly pleaded and could not take priority over Sandra Deopersad's judgment enforcement.

The plaintiffs advanced $60,000 to the defendant, claiming it was a personal loan.

The defendant argued the funds were intended for a high-risk investment in a third-party lending business.

The court found that the plaintiffs knew the funds were for an investment, but the defendant only invested $26,000 and secretly retained $34,000 to reduce his own exposure to the scheme.

The court ordered the defendant to repay the $34,000 he misappropriated, but dismissed the claim for the $26,000 that was actually invested and lost when the scheme collapsed.

The applicant sought a declaration that she was the sole beneficial owner of a property legally owned by the respondent, her friend, to prevent the respondent's former spouse from selling the property to enforce a family law judgment.

The applicant claimed an oral agreement existed where the respondent held the property in trust because she could not obtain a mortgage.

The court found insufficient evidence of a 100% trust but determined that both parties contributed to the purchase price.

Applying the presumption of a purchase money resulting trust, the court declared the applicant held a 60% interest and the respondent held a 40% interest in the property.

The defendant dentist moved for summary judgment in a dental negligence claim without filing any expert evidence on the merits of his defence, relying on previous case law suggesting defendants need not do so.

Following the release of the Court of Appeal's decision in Sanzone v. Schecter, which clarified that moving defendants must put their best evidentiary foot forward under Rule 20.01(3), the court dismissed the summary judgment motion.

The court held that the defendant failed to discharge his evidentiary burden to prove there was no genuine issue requiring a trial.

The defendant moved for summary judgment on a dental negligence claim, arguing the plaintiff failed to provide a proper expert report, and sought to strike several paragraphs from the statement of claim.

The court found the plaintiff's expert affidavit deficient in form and raised concerns about the admissibility of underlying reports due to potential conflicts with the Regulated Health Professions Act.

The court deferred a final decision on the summary judgment motion, ordering further submissions on the admissibility of evidence.

However, the court granted the motion to strike numerous paragraphs from the statement of claim that were deemed irrelevant or inconsistent with the RHPA.

The applicant brought a motion for interim spousal support, financial disclosure, and reimbursement of moving and storage expenses following separation.

The court found the respondent’s financial disclosure unreliable and inconsistent with his lifestyle and therefore imputed income based on his expenses.

Departing from the Spousal Support Advisory Guidelines custodial payor range, the court awarded higher interim support to reflect the circumstances surrounding the separation and the applicant’s financial vulnerability.

The court also ordered extensive financial disclosure and reimbursement of storage fees.

Interim spousal support was fixed at $4,260 per month pending trial.