Érik Labelle Eastaugh

This decision addresses costs following two motions where the Bank of Montreal and Surgeson Carson Associates, Inc. (the Receiver) successfully obtained summary judgment dismissing claims by Jean-Luc Cardinal, Linda Cardinal, The Estate of Raymond Cardinal, and Ferme Lanidrac (the Borrowers), and successfully defended the Borrowers' motion to set aside a consent judgment.

The Bank and Receiver sought substantial indemnity costs, citing the complexity, importance, and unfounded allegations of fraud and abuse of process made by the Borrowers.

The Borrowers argued for partial indemnity costs, claiming shared success on a legal test and that the defendants' evidence was excessive.

The court awarded substantial indemnity costs to the Bank ($110,000) and the Receiver ($50,000), finding the Borrowers' conduct in re-litigating settled claims and making serious, unsubstantiated allegations of dishonesty warranted higher costs, despite acknowledging minor success on a legal argument.

The Proposed Intervenors brought a motion for leave to intervene in an application to set aside an arbitration award arising from the receivership of a Ponzi scheme.

The Proposed Intervenors argued they had an interest in the subject matter, would be adversely affected, and shared common questions of law or fact, as they faced similar claims in separate proceedings.

The court dismissed the motion, finding the Proposed Intervenors had no direct interest in the subject matter, would not be adversely affected by the judgment, and would not make a useful contribution without causing injustice or delay to the immediate parties.

The borrowers brought a motion to set aside a consent order terminating a receivership, alleging that the Bank and the court-appointed Receiver made misrepresentations during settlement negotiations.

The Bank and the Receiver brought a motion for summary judgment to dismiss the borrowers' subsequent action for damages.

The court found no evidence of misrepresentation, noting that the borrowers had independent legal advice, received full disclosure, and signed multiple full and final releases.

The court dismissed the motion to set aside the consent order, denied retroactive leave to sue the Receiver, and granted summary judgment dismissing the borrowers' action on the basis of res judicata.

The plaintiffs sought continuation of an ex parte Mareva injunction freezing the defendant’s assets in a civil action alleging fraud, negligent misrepresentation, and unjust enrichment arising from more than $1.6 million paid over thirteen years for alternative therapy.

The court considered whether the plaintiffs established a strong prima facie case and whether the balance of convenience favoured continuation of the injunction.

The court found the plaintiffs failed to demonstrate a strong prima facie case, noting that the payments were voluntarily made for services provided by an astrologist and medium whose credentials were not misrepresented.

The court accepted an undertaking that the net proceeds from the defendant’s Quebec residence would be held in trust pending further order.

The Mareva injunction was therefore not continued except for the confidentiality provisions.