Richard J. Mazar

The appellants appealed a motion judge's decision enforcing a settlement agreement between the respondent mortgagee and the appellants regarding mortgage enforcement proceedings.

The appellants argued the settlement agreement was unenforceable because the mortgagee failed to comply with notice requirements under section 244(1) of the Bankruptcy and Insolvency Act before enforcing its mortgage.

The Court of Appeal upheld the motion judge's decision, finding that the appellants had voluntarily relinquished any claim based on section 244 when they entered into the settlement agreement with full knowledge of that claim, having previously raised it in their statement of defence.

The court found no basis for appellate intervention and dismissed the appeal with costs.

The Court of Appeal for Ontario granted a motion by Alyange Holdings Inc. to strike portions of the responding parties’ Appeal Book and Compendium that were not before the motion judge.

The court held that the appeal record must be limited to evidence before the lower court, rejecting the respondents’ argument that documents from an earlier application could be included.

The court emphasized the principles of finality and fairness, and awarded costs to the moving party.

The plaintiff brought a motion to discharge the defendant's construction lien, arguing it was discharged when the defendant inadvertently "registered" an application to delete it.

The defendant argued the lien was not discharged because the "registration" was incomplete as it was never certified by the Land Registrar and was subsequently withdrawn.

The court, applying statutory interpretation principles to the Land Titles Act and Land Registration Reform Act, held that "registration" is a staged process requiring both receipt and certification by the Land Registrar.

Since the application to delete the lien was received but not certified and was withdrawn, it was never fully registered, and thus the original lien was not discharged.

The plaintiff's motion was dismissed.

This motion for directions was brought by the Receiver of Unit 417 in a condominium project to determine whether the purchaser, Gerald Rasmussen, was entitled to clear title despite having prepaid the final balance of his purchase price directly to the developer, Brightstar, rather than into a deposit trust account.

The Guarantee Company of North America (GCNA), a secured creditor, opposed, arguing Rasmussen's payment was not bona fide and its mortgage should prevail.

The court found Rasmussen to be a bona fide purchaser for value, ruling that his payment, though structured as a loan, was the final purchase price payment under the agreement of purchase and sale.

The court determined that the APS did not prohibit direct payment to the vendor for the final balance and that GCNA's mortgage did not take priority over Rasmussen's interest.

The Receiver was directed to close Rasmussen's purchase and vest clear title in his name.

The applicant mortgagee sought a declaration for immediate vacant possession of a property following an alleged default.

The respondents argued that an oral agreement existed waiving mortgage payments until a quarry on the property was operational, raising significant credibility issues.

The court agreed with the respondents that the factual disputes could not be resolved on a paper record and ordered the application converted into an action pursuant to Rule 38.10(1)(b) of the Rules of Civil Procedure.

The defendants brought a motion to set aside a default judgment of $581,787.01 obtained by the plaintiff in relation to a defaulted mortgage.

The court applied the test for setting aside a default judgment and found that while the defendants had no arguable defence regarding the $500,000 principal and accrued interest, they did have an arguable defence regarding the penalties, charges, and costs awarded.

The court partially granted the motion, upholding the judgment for the principal and interest but setting aside the portion relating to penalties, charges, and costs.

The defendants brought a motion to discharge the plaintiff's construction lien claim and certificate of action, arguing it was not registered in a timely manner and had expired.

The plaintiff, an architectural firm, contended its last supply of services was an attendance at the property to assess a potential roof-raising project, which would make the lien timely.

The court found that this attendance did not constitute a "supply of services to an improvement" under the Construction Lien Act, as it was unsolicited, did not enhance the property's value, and was outside the scope of the original contracts.

Consequently, the lien was found to have expired in early 2009, making its registration in March 2012 untimely.

The defendants' motion to discharge the lien was granted, and the security posted by a third party was ordered to be returned.

The plaintiff's underlying contractual claim was not dismissed.

The plaintiff brought a motion to extend the time for service of its Statement of Claim, which was granted *nunc pro tunc* to comply with s. 53(2) of the Construction Lien Act.

The court found the default was not intentional, there was no inordinate delay, and the delay would not affect a fair trial.

Despite the plaintiff's success in obtaining the extension, the defendants were awarded costs due to the plaintiff's inadvertence in necessitating the motion.

A non-party corporation brought a motion to set aside default judgments obtained against an individual for unpaid legal fees.

The moving party argued the judgments were invalid because the legal services were allegedly provided to a corporation rather than the individual personally, and that the default judgments undermined its defence in related mortgage litigation.

The court held that the moving party lacked standing because the default judgments affected it only indirectly as a creditor and it had no relationship with the defendant.

In any event, the motion was brought after significant delay, provided no explanation for the defendant’s default, and the deemed admissions in the statement of claim were sufficient to support the judgments.

The motion was dismissed with costs.

Following dismissal of the plaintiff’s action after trial, the defendant sought costs relying on a pre‑trial offer to settle served under Rule 49 of the Rules of Civil Procedure.

The offer proposed payment between $25,000 and $10,000 depending on the timing of acceptance, but it was not accepted.

The court rejected the plaintiff’s argument that the offer was merely a nuisance offer and found it constituted a genuine attempt to compromise the dispute.

Applying the principles governing Rule 49 offers where the result at trial is more favourable to the offeror, the court awarded partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

The plaintiff insurance brokerage sued the defendant umbrella network for breach of contract, breach of good faith, and an accounting of contingent profit commissions following the termination of their brokerage agreement.

The court found that the defendant terminated the agreement in accordance with the 90-day notice provision and acted in good faith, causing no proven financial loss to the plaintiff.

The court also dismissed the claim for an accounting, holding that the plaintiff was improperly seeking a 'fishing expedition' to discover if a loss occurred rather than quantifying a known loss.

The action was dismissed.