Rajiv Joshi

In proposal proceedings under the Bankruptcy and Insolvency Act, the debtor brought concurrent expungement motions against proofs of claim filed by two former law firms.

The court held that the debtor failed to establish, on a balance of probabilities, that the trustee erred in admitting the unpaid appeal-fee claim of one firm or that the claim was not legitimate, and further held that s. 135(5) did not permit reopening paid accounts or ordering repayment beyond the amount of the proof of claim.

Applying insolvency expungement jurisprudence, solicitor’s account assessment principles, and the single proceeding model, the court found that the negligence allegations against the second firm raised complex unliquidated set-off issues more appropriately determined in the pending civil negligence action.

The expungement motion as to the first law firm was dismissed, while the motion as to the second was adjourned pending the civil action, with the trustee directed to retain the disputed amount.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' action for breach of a settlement agreement on the basis that it was commenced outside the two-year limitation period.

The plaintiffs argued that a rolling limitation period applied because the agreement involved periodic payments.

The court held that a 'once and for all' limitation period applied because the defendants had categorically repudiated the agreement and declared it null and void more than two years before the action was commenced.

The motion was granted and the action was dismissed as statute-barred.

The appellants appealed the City of Toronto's failure to make a decision on a zoning by-law amendment application to permit a 69-storey residential building.

The parties reached a settlement.

The Tribunal accepted uncontroverted expert planning evidence that the proposed transit-oriented development is consistent with provincial policy, conforms to the City's Official Plan, and represents good planning.

The Tribunal allowed the appeal in part and approved the zoning by-law amendment in principle, withholding its final order pending the satisfaction of several conditions including the execution of a rental housing demolition agreement.

On a s. 37 Bankruptcy and Insolvency Act appeal/motion, the moving parties sought to strike or expunge a transcript from a s. 163 examination and obtain a fresh examination on the basis that the trustee had not disclosed prior unserved actions concerning certain properties.

The court held that the trustee's investigative powers under s. 163 are broad, that no duty of advance disclosure arose on these facts, and that the examined party was not then a defendant in the prior actions.

The court further held that neither moving party was an aggrieved person within s. 37, the challenge was not brought within a reasonable time, and there was no basis to interfere with the trustee's discretionary decisions.

The appeal/motion was dismissed with partial indemnity costs to the trustee.

The applicant sought a declaration that a mortgage was paid off and for its discharge, alleging payment to the respondent law firm via third-party bank drafts.

The law firm denied accepting the funds as payment for the mortgage, citing issues with third-party identity verification and authorization.

The court found significant factual disputes not amenable to a short application hearing.

Procedural orders were made, including a timetable for evidence, consolidation with a related action, payment of disputed funds into court, and a ruling that the law firm's counsel, who had sworn an affidavit, could not continue to act as counsel for the corporate respondent.

The Plaintiffs sought costs after the Defendants abandoned a motion they had brought seeking various reliefs, including an injunction and declarations regarding a mortgage loan.

The court found that the Defendants' motion was deemed abandoned under Rule 37.09(3) of the Rules of Civil Procedure, entitling the Plaintiffs to costs forthwith.

The court rejected the Defendants' argument that these were "interim costs" or should be "costs in the cause" distinguishing them from the extraordinary circumstances for interim costs.

While the Defendants' abandoned motion included a request for a declaration that could have disposed of the entire action (akin to a summary judgment), the court declined to award substantial indemnity costs under Rule 20.06, finding that the Defendants did not act unreasonably or in bad faith in bringing or abandoning the motion, as they were genuinely attempting to secure alternative financing.

The Plaintiffs were awarded costs on a partial indemnity basis.

The defendant brought a motion to set aside a default judgment of over $1.3 million obtained by the plaintiff.

The defendant argued he was not served with the statement of claim and had an arguable defence regarding the nature of the funds advanced.

The court found the defendant had an arguable defence and noted significant errors and misleading information in the plaintiff's default judgment motion record, including improper currency conversion and unilaterally imposed interest rates.

The motion was granted, the default judgment was set aside, and costs were awarded to the defendant.

The plaintiffs brought a motion for an interlocutory injunction to prevent the sale of a commercial property, or alternatively, to hold 50% of the net proceeds of any sale in trust.

The plaintiffs claimed that a 1997 transfer of their 50% interest in the corporation owning the property was subject to an unwritten trust agreement.

The court dismissed the motion, finding that while there was a serious issue to be tried, the plaintiffs failed to demonstrate irreparable harm as they were ultimately seeking monetary compensation.

Furthermore, the balance of convenience favoured the defendants due to the plaintiffs' significant delay in prosecuting the action.

The Court of Appeal for Ontario issued a costs endorsement following its main appeal decision.

The court awarded the respondents costs for two pre-hearing motions ($1,000 for the Motion to Expedite and $7,000 for the Motion to Introduce Fresh Evidence).

Due to divided success on the appeal itself, the parties were ordered to bear their own costs for the appeal.

The lower court's costs order was not disturbed as the basis for the appellants' partial success on one issue was not argued at the application level.

The appellant, King Square Limited (KSL), appealed a trial judgment that found it liable to pay further commissions to the respondent mortgage broker, OMJ Mortgage Capital Inc. (OMJ), for additional loan advances obtained from Firm Capital Corporation (FCC).

KSL argued these were new loans made outside the commission agreement's term.

The Court of Appeal, applying a deferential standard of review to contract interpretation, upheld the trial judge's finding that the additional advances were not new loans but rather further advances under the original loan commitment, which was secured during the currency of the commission agreement.

The court found the trial judge's interpretation commercially reasonable and dismissed the appeal.

The appellants, owners of a servient tenement, appealed a decision dismissing their application to declare two registered rights of way (ROWs) abandoned by the dominant tenement owners.

The Court of Appeal affirmed that abandonment requires proof of a fixed intention never to assert the right, inferred from non-use and acquiescence to permanent obstructions.

The Court found a palpable and overriding error in the application judge's assessment of the 174 Strachan ROW, concluding it was completely obstructed by a permanent house extension and thus abandoned.

For the 176 Strachan ROW, which was only partially obstructed, the Court dismissed the appeal for total abandonment but allowed it for partial abandonment of the portion under the house extension, remitting this issue for further determination.

The defendant 2613497 Ontario Inc. moved under Rule 37.14 to set aside a Mareva injunction and discharge Certificates of Pending Litigation, arguing the original order was obtained without notice and without full and fair disclosure.

The court found that the defendant's lawyers of record had participated in case conferences and filed responding materials for the original motion, establishing that the defendant had notice.

As the motion was not made without notice, Rule 37.14 did not apply, and the court dismissed the motion, awarding costs to the plaintiffs.

The appellants appealed a summary judgment ordering them to pay $185,999.32 under Minutes of Settlement and dismissing their counterclaim.

The appellants argued the Minutes were unenforceable due to economic duress, claiming they were pressured by a construction lien that prevented refinancing.

The Court of Appeal upheld the motion judge's finding that there was no genuine issue for trial, as the appellants failed to satisfy the first prong of the economic duress test: they did not protest, had independent legal advice, had alternative courses of action, and took no timely steps to avoid the agreement.

The appeal was dismissed.

The plaintiff mortgage broker, OMJ Mortgage Capital Inc. (OMJ), sued the defendant, King Square Limited (KSL), for commissions on three loans extended by Firm Capital Corporation (FCC).

OMJ claimed commissions on two loans to KSL and one loan to King Square Hotel Corporation (KSHC), arguing they were further advances under an original loan commitment or covered by the holdover period of their commission agreement.

KSL contended the loans were new and outside the agreement's terms, and that it was not liable for a loan to KSHC, a separate entity.

The court found the two loans to KSL were further advances under the original commitment, entitling OMJ to commissions, and that KSL breached its duty of good faith by not disclosing these advances.

However, the court dismissed OMJ's claim for commission on the KSHC loan, finding it was a distinct loan not covered by the agreement's terms or the definition of "Borrower."

An insurer appealed a decision finding that an insured's adult daughter was covered under a homeowner's insurance policy after she was injured falling from a porch.

The daughter had lived with her mother for over 60 years, paid rent, and performed household chores.

The policy excluded coverage for persons residing in the household except residence employees.

The application judge found the daughter was not a residence employee but was covered as a tenant.

The Court of Appeal allowed the insurer's appeal, holding that once a person is established as a member of the household, they cannot be covered as a tenant under the exclusion clause, regardless of whether they pay rent.

Following an application where the respondent successfully established coverage under her homeowners' insurance policy, the respondent sought costs on a substantial indemnity basis relying on an offer to settle.

The court found the offer did not trigger the cost consequences of Rule 49.10.

However, as the respondent was wholly successful in defeating the application, the court awarded her partial indemnity costs in the amount of $16,073.12.

A motion to set aside orders of a chambers judge denying leave to appeal.

The core issue was whether an appeal from a decision denying leave to sue a court-appointed receiver is governed by the Bankruptcy and Insolvency Act (BIA) or the Courts of Justice Act (CJA).

The receiver was appointed under both statutes.

The applicant argued that since the leave to sue provision could be grounded in provincial law under the CJA, the appeal should follow the CJA route, which permits appeals as of right within 30 days.

The respondent argued that the BIA governs because the receivership proceedings are BIA proceedings and the appeal provisions are in operational conflict.

The court held that the BIA governs the appeal route because the leave to sue provision is authorized by the BIA through necessary implication of section 243(1), and federal paramountcy applies to the conflicting appeal provisions.

The plaintiff, 688857 Ontario Limited, sought substantial indemnity costs after successfully recovering $58,761 (plus interest, totaling approximately $66,000) in a fidelity insurance claim against Aviva Insurance Company of Canada.

The court determined it was reasonable for the plaintiff to have pursued the action under ordinary procedure, despite the recovery being below the Simplified Procedure threshold, due to the complexity of employee vs. independent contractor issues and bad faith claims.

The court declined substantial indemnity costs, finding no serious misconduct by the defendant, and awarded partial indemnity costs.

The final award was $196,609.08, significantly less than the plaintiff's claim of $240,563, after adjustments for trial inefficiencies, counsel rates, and proportionality.

This costs endorsement addresses the plaintiff's request for costs thrown away following the adjournment of a trial due to the defendants' late disclosure of material documents.

The plaintiff sought full indemnity costs of $16,709.88.

The defendants argued for nominal costs.

The court determined that the defendants' failure to disclose warranted a sanction and awarded costs on a substantial indemnity basis, fixing the amount at $5,000.00, inclusive of disbursements and taxes, to be paid by the defendants to the plaintiff.

The insurer, Traders General Insurance Company, sought a declaration that it was not required to indemnify Elizabeth Gibson under her homeowner's policy for a claim brought by her adult daughter, Betty, who was injured at Elizabeth's home.

The policy excluded coverage for bodily injury to the insured or any person residing in the insured's household"other than a residence employee." The respondent argued that Betty was either a "residence employee" or a "tenant." The court found that Betty was not a "residence employee" as there was no formal employment relationship, no contract, no wages, and no supervision.

However, the court concluded that Betty was a "tenant" because she occupied the property and paid rent, satisfying the two components of a tenancy, even without a written lease.

Since the policy did not exclude coverage for tenants, the application was dismissed, and Traders was found to have a duty to defend and indemnify Elizabeth Gibson.