Ronald B. Moldaver

This action and amalgamated application arose from a series of informal secured and unsecured loans, mortgages, promissory notes, and related investment dealings between the plaintiff and the responding parties.

The court found that $200,000 in fire insurance proceeds received by the mortgagees as loss payees had to be treated as satisfying the secured mortgage debt to that extent, and could not be redirected to unsecured debts while the mortgagees still asserted the full secured claims.

The court held that the accounting provided by the responding parties was materially inaccurate, declared both power of sale proceedings invalid, and discharged the NUTOK mortgage.

Most unsecured promissory note claims were statute barred, but the KUL mortgage balance, the Xtra Gold debt and share proceeds, and two 2009 promissory notes remained owing.

The respondent was successful on an appeal from a Small Claims Court decision and sought costs on a full indemnity basis, alleging the appellant engaged in deliberate delay and frivolous litigation.

The appellant argued for partial indemnity costs.

The court rejected the request for full indemnity, finding no reprehensible or egregious conduct by the appellant.

Costs were fixed at $5,500 inclusive of tax and disbursements, taking into account the preparation required for a fresh evidence application.

The appellant appealed a Small Claims Court decision finding him liable for unjust enrichment for property management services provided by the respondent.

The appellant argued that the trial judge made palpable and overriding errors in fact-finding and credibility assessments, and erred in quantifying damages without expert evidence on fair market value.

The Divisional Court dismissed the appeal, finding ample evidence that the appellant continued to demand services and that the trial judge's credibility findings and damages assessment based on historical billing were reasonable.

The applicant bank sought the appointment of a receiver over two corporate debtors and two residential properties owned by the individual guarantor following defaults on credit facilities.

The debtors opposed the appointment, arguing there was no urgency and that the guarantor was best positioned to sell the properties.

The court found it just and convenient to appoint a receiver over the corporate entities and a vacant residential property due to the ongoing erosion of security and the guarantor's failure to secure refinancing or a sale over two years.

However, the court declined to appoint a receiver over the guarantor's matrimonial home, finding it unnecessarily invasive and noting the bank could pursue other contractual remedies.

Following the dismissal of an appeal from a decision of a Master, the court addressed the issue of costs.

The respondents sought $20,540.16 on a partial indemnity basis, while the appellant argued that $7,500 inclusive of fees, taxes, and disbursements would be reasonable.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure, the court considered the importance of the issues, the potential financial stakes, the complexity of the appeal, and the reasonable expectations of the parties.

Although the court found that some of the respondents’ docketed time appeared excessive, it accepted that substantial preparation was justified given the stakes and the commercial context.

The court fixed costs at $16,000 inclusive of HST and disbursements as fair and reasonable in the circumstances.

The appellant appealed the dismissal of his application for the winding-up of a corporation or other equitable relief under the Business Corporations Act.

The application judge had found no irreconcilable conflict, no exclusion from management, and no reasonable expectation that there would be a wind-up or forced sale of shares if an original party wished to withdraw.

The Divisional Court dismissed the appeal, finding no palpable and overriding error of fact or error of law in the application judge's exercise of discretion.

The appellant appealed a decision of a Master who declined to proceed with a reference related to a judgment for partition and sale of several apartment properties.

After obtaining the judgment, the appellant privately sold its minority interest to the majority owner outside the reference process and removed the instrument registering the judgment for sale.

The appellant later sought to continue the reference solely to pursue an accounting against the property manager for alleged overcharged management fees.

The court held that the reference was governed by the judgment for sale and that the accounting was merely ancillary to the sale process.

Because the appellant’s private transaction rendered the judgment for sale moot, the Master correctly found that she lacked jurisdiction to continue the reference.

The appeal was dismissed.

The defendant moved to set aside a noting in default and a default judgment arising from a claim for non‑payment of a mortgage debt.

The court applied the established test requiring promptness, a plausible explanation for the default, and an arguable defence on the merits.

The defendant asserted that health issues prevented awareness of the statement of claim and demonstrated an arguable defence through a related action alleging misrepresentations concerning the subject property, supporting a claim of equitable setoff.

The court held that the interests of justice favoured setting aside the default judgment.

The order was set aside on the condition that the defendant pay $250,000 into court and deliver a statement of defence.

Dispute arising after the sale of a jointly owned apartment building pursuant to a partition order.

The applicant purchased the property from the respondent co-owners and the parties disagreed over responsibility for the real estate commission and the fees of an independent lawyer appointed to oversee the sale process.

The court held that the agreement of purchase and sale made the respondent vendors solely responsible for the real estate commission, despite earlier sale conditions contemplating shared responsibility.

However, the court found the applicant remained obligated to pay its 25% share of the independent lawyer’s post‑agreement fees because the lawyer had been appointed to act impartially for the benefit of all partners.

An order was made directing payment of the applicant’s share of those fees from escrow funds.

The moving party sought an extension of time to file a notice of appeal.

The appeal was originally filed in a timely manner but inadvertently in the Court of Appeal instead of the Divisional Court as required by the Business Corporations Act.

The responding parties refused to consent to a one-day extension, arguing the appeal lacked merit.

The court granted the extension, finding the delay was de minimis, there was no prejudice, and the appeal met the low threshold of having some merit.

The moving party sought an order dismissing relief requested in a notice of hearing for directions and a declaration that the court lacked jurisdiction to continue a reference arising from a judgment for sale under the Partition Act.

The original judgment ordered the sale of jointly owned properties under the direction of a referee, with proceeds to be paid into court.

The applicant in the original proceeding later privately sold its ownership interest without complying with the judgment for sale and without paying proceeds into court.

The court held that the judgment for sale was the sole jurisdictional basis for the reference and had become unenforceable due to the private sale.

As a result, the reference master lacked jurisdiction to continue the reference.

The defendant brought a motion under the Rules of Civil Procedure seeking an order requiring the plaintiff to answer certain undertakings and refused questions arising from examinations for discovery.

The court applied the relevance test under Rule 31.06(1) and reviewed multiple refused questions to determine whether they related to matters in issue, particularly the ownership of coins held in a safety deposit box.

Most questions were found to be irrelevant or speculative and did not need to be answered, though one question relating to an alleged event in Israel was ordered answered.

The court also addressed alleged improper interruptions by plaintiff’s counsel during discovery and directed counsel to conduct future examinations consistently with established principles governing discovery conduct.

Costs of $1,000 were awarded to the defendant.

A secured creditor applied for the appointment of a receiver over a debtor real estate holding company under s. 243(1) of the Bankruptcy and Insolvency Act and s. 101 of the Courts of Justice Act.

The respondent argued that the appointment of a receiver should not proceed by application and that ordinary remedies were available.

The court held that the governing legislation expressly contemplates appointment by application and that such an order constitutes a final order determining the issues raised.

Given the debtor’s continuing default, the enforceability of the creditor’s security, and the lack of an operating business, the court found it just and convenient to appoint a receiver.

Following a motion to strike portions of a statement of defence under Rule 25.11 of the Rules of Civil Procedure, the court determined the appropriate costs award.

The moving party had been largely successful, obtaining an order striking three of four impugned paragraphs.

Although the moving party sought partial indemnity costs exceeding $7,000, the court held the requested amount was disproportionate given the limited complexity and narrow scope of the motion.

Applying the principles under s.131 of the Courts of Justice Act and Rule 57, the court fixed costs at a reduced amount to reflect both proportionality and the moving party’s partial success.

The appellant appealed a trial decision dismissing his claim for $25,000 on a promissory note and awarding the respondent $10,030 on a counterclaim for construction defects.

The trial judge found the promissory note lacked consideration and was obtained by misrepresentation.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or assessment of damages.

The Divisional Court determined it lacked jurisdiction over the cross appeal.

Because the appeal and cross appeal were intertwined, the court adjourned both matters without a fixed date so they could be heard together following a motion under section 6(3) of the Courts of Justice Act.

Enforcement of the payment order was stayed pending further order.

The plaintiff brought a motion under Rule 25.11 of the Rules of Civil Procedure seeking to strike several paragraphs from a defendant’s statement of defence.

The impugned pleadings alleged that the action was malicious and sought elevated or non‑party costs against the plaintiff’s officers and directors.

The court held that allegations regarding a plaintiff’s motive for commencing litigation do not constitute a defence and that pleadings directed solely to potential costs consequences are improper.

The court struck the impugned paragraphs that related to improper motive and potential non‑party costs, while permitting a paragraph requesting dismissal of the action with full indemnity costs to remain as a general costs request.

Leave to amend was refused because the defects related to improper pleading rather than drafting deficiencies.

The respondents sought costs for two appeals following the release of the court's reasons.

For the first appeal, the court declined to award costs, agreeing with the appellants that their partial success on appeal warranted an offset against the significant unadjusted costs awarded in the court below.

For the second appeal, where the respondents were entirely successful, the court awarded costs fixed at $7,500, noting the appeal was straightforward and took little time.

The appellants appealed a trial judgment finding them liable for fraud, conspiracy, and breach of fiduciary duty in several real estate transactions with the Ontario Realty Corporation.

The Court of Appeal upheld the trial judge's findings on most transactions, including orders for disgorgement of profits based on knowing receipt and conspiracy with a fiduciary.

However, the Court allowed the appeal regarding the King's Highway 2A property, finding no basis for disgorgement where no fiduciary breach or damages were proven.

The respondents' cross-appeal was allowed in part, holding a former employee jointly and severally liable for a $300,000 improper price abatement.

The appellant appealed a motion judge's order permitting the respondent to amend their pleadings to correct a misnomer.

The respondent had inadvertently named the wrong, but closely related, corporate entity in a slip and fall claim.

The Court of Appeal dismissed the appeal, finding ample evidence that the appellant had probable knowledge it was the target of the litigation within the limitation period and suffered no irreparable prejudice.