Ronald Jacob Aisenberg

The Canadian Imperial Bank of Commerce (CIBC) brought a motion against Samuel J. Berkovits (debtor) and 1539058 Ontario Inc. (garnishee) to enforce a judgment via garnishment.

CIBC argued that the garnishee's statement was materially false and misleading, effectively amounting to no statement at all, due to late delivery, omissions, and a lack of disclosure regarding payments and reimbursements to the debtor.

The court found that the debtor and garnishee had arranged their finances to avoid garnishment.

The court deemed the garnishee's statement materially deficient and ordered the garnishee to provide extensive documentation regarding all compensation, payments, and personal expenses paid on behalf of the debtor.

The determination of the final amount payable by the garnishee was adjourned pending this disclosure.

The appellant, Stephen B. Sutherland, appealed the dismissal of his action by a motion judge, who found it barred by res judicata and abuse of process.

The action was identical to a counterclaim previously dismissed in a collection action by the Canadian Imperial Bank of Commerce (CIBC).

The Court of Appeal upheld the motion judge's decision, agreeing that the principles of res judicata and abuse of process correctly prevented relitigation.

The court found no evidence of unfairness or injustice to warrant intervention.

This endorsement addresses costs following the dismissal of CIBC's motion for partial summary judgment.

The successful defendants sought partial indemnity costs, while the unsuccessful plaintiff requested "costs in the cause." The court determined that partial indemnity costs should follow the event, particularly for partial summary judgment motions, due to the inherent risk undertaken by the moving party.

The court awarded the defendants $26,880.00 in costs, a reduction from their requested amount due to the lack of detailed dockets in their costs outline.

The Bank of Nova Scotia ("BNS") sought summary judgment against former spouses Danilo Milosevic and Dusica Grabovica for a joint line of credit debt.

The court found no genuine issue requiring a trial regarding Mr. Milosevic's liability for the debt itself, affirming joint and several liability.

However, a genuine issue was found regarding the precise accounting of the debt, specifically the applicable interest rate and calculation of accrued interest, which was ordered to proceed to a trial of the issue.

Ms. Grabovica's liability was already set for a mini-trial concerning her signature's authenticity.

Costs were reserved to the trial judge.

The defendant, CIBC, brought a motion to dismiss or stay the plaintiff's action, or strike out the statement of claim, on grounds of res judicata, abuse of process, or failure to disclose a reasonable cause of action, and for security for costs.

The plaintiff, Stephen B. Sutherland, opposed, arguing for an exception to res judicata based on fairness and claiming impecuniosity regarding security for costs.

The court found that the claims were identical to those previously struck out in a prior "Collection Action" and were therefore barred by res judicata and constituted an abuse of process.

The action was dismissed, and CIBC was awarded costs.

The Court of Appeal for Ontario dismissed an appeal by defendants seeking to hold litigation lenders liable for costs incurred by a class member (Mr. Zuber) who pursued an exaggerated damages claim and incurred substantial debt from litigation loans.

The trial judge had refused to order the lenders to pay costs, finding they did not instigate or control the litigation in a manner amounting to an abuse of process, despite the onerous interest rates and the loans impeding settlement.

The Court of Appeal affirmed this decision, reiterating that non-party costs are limited to "person of straw" or abuse of process scenarios, neither of which applied to the lenders' conduct.

The court also refused leave to cross-appeal the trial judge's decision not to award costs of the motion to the lenders, finding no error in principle.

This is an appeal from a summary judgment granted in favour of the Bank of Montreal against Granville Cadogan, a lawyer.

The Bank alleged Cadogan made a knowingly false "law statement" in Ontario's electronic land registration system regarding a writ of seizure and sale.

The motion judge awarded damages and punitive damages.

Cadogan appealed, arguing the motion judge erred in refusing an adjournment and in relying on an incomplete evidentiary record.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's discretionary decision to refuse the adjournment, given Cadogan's pattern of obfuscation and lack of supporting evidence for his illness.

The court also found the evidentiary record sufficient to support the motion judge's conclusion that Cadogan's statement was false and knowingly made, noting his conduct was inconsistent with any belief of a settlement or release.

The plaintiff, BMW Financial Services Canada, brought a motion for summary judgment against the defendant, Jingwe Liu, for monies owed under a vehicle lease agreement.

The defendant had admitted signing the lease in his statement of defence but later claimed the signature was a forgery and the witness was not present.

The court granted summary judgment to the plaintiff, finding the defendant's admission clear and definite, and that there was no genuine issue requiring a trial.

The court also considered, hypothetically, a motion to withdraw the admission and found it would not be granted due to lack of reasonable explanation and non-compensable prejudice to the plaintiff.

Mr. Towing Inc. appealed a Small Claims Court judgment that dismissed its action for additional vehicle storage charges against Mercedes-Benz Financial Services Canada Corporation (MBFS).

The trial judge found that Mr. Towing's lien for storage was limited to the initial 60-day period due to its failure to provide written notice to MBFS as required by the Repair and Storage Liens Act (RSLA).

The Divisional Court upheld the trial judge's decision, confirming that Mr. Towing was required to provide notice and that its lien was limited to 60 days of unpaid storage charges, which had already been paid by the driver's insurer.

The appeal was dismissed, and MBFS was awarded costs.

The appellant lender sought to recover $100,000 advanced to the respondent company on the security of a promissory note guaranteed by the respondent individual.

The motion judge dismissed the appellant's motion for summary judgment and granted summary judgment in favour of the respondents.

The Court of Appeal found that the motion judge failed to properly address a clear conflict in the evidence regarding whether the respondent individual controlled the company and whether the promissory notes were signed with authorization.

The court held that the motion judge improperly preferred one affidavit over another without providing explanatory reasons and without considering whether credibility issues could be resolved without viva voce evidence.

The judgment was set aside and the matter was remitted for proper adjudication.

The applicant sought specific performance of an Agreement of Purchase and Sale.

The respondent repudiated the agreement, citing a family tragedy and the inability of beneficial owners (his mother and brother) to approve the terms, as per a "Seller's Solicitor's Approval Condition." The court found that the respondent failed to exercise the solicitor's approval clause reasonably, honestly, and in good faith, as no legal advice was sought regarding the terms of the agreement or the beneficial ownership issue.

The court emphasized that moral blameworthiness or family dynamics do not factor into the test for exercising such a clause and that contractual terms cannot be expanded by surrounding circumstances.

Specific performance was awarded to the applicant, and the agreement was deemed valid.

The appellants appealed a summary judgment decision in which the respondents successfully recovered funds they had lent to Glocap Management Inc. The appellants argued that they could not be held liable due to their failure to obtain necessary approvals, and raised issues regarding guarantees and material alteration of risk.

The Court of Appeal upheld the lower court's decision, finding that the appellants could not rely on their own failures to avoid their obligations, that there was no evidence of unilateral alteration of risk, and that the appellants failed to meet their burden of establishing the quantum of credit they sought.

The appeal was dismissed with costs awarded to the respondents.

The defendants moved for summary judgment to dismiss the plaintiff's action, asserting that the parties had executed a binding agreement and release concerning renovation work.

The plaintiff argued that he was coerced into signing the agreement due to economic duress, thus rendering the settlement non-binding.

The court applied the summary judgment test from *Hryniak v. Mauldin* and found no genuine issue requiring a trial.

It determined that the plaintiff's financial needs did not constitute illegitimate pressure for economic duress and that the plaintiff had affirmed the settlement by retaining the payment.

Consequently, the court granted the defendants' motion, dismissing the action and upholding the settlement agreement.

The defendants, 3877337 Canada Inc. (HLC Home Loans Canada) and Home Trust Company, moved for summary judgment to dismiss the plaintiff's action for damages related to a failed mortgage refinancing.

The plaintiff, Vito Auciello, alleged breach of contract, bad faith, and other claims, arguing that the defendants caused delays and used unqualified appraisers, leading to the failure of the financing.

The court found that the action was improperly constituted as the claim belonged to the corporation (Network Cash Mart Ltd.) that owned the property, not the individual plaintiff.

Furthermore, the plaintiff failed to provide evidence to support his claims, including damages or alternative appraisals, and did not satisfy the conditions of the mortgage commitment.

The court applied the Hryniak v Mauldin test for summary judgment, concluding there was no genuine issue requiring a trial.

The applicants, Anisur and Sharmin Sikder, brought a motion for summary judgment against Carol Jesseau regarding deficiencies in a purchased residential property, for which their insurer sought subrogated reimbursement.

The respondent, Ms. Jesseau, sought leave to amend her pleadings.

The court found genuine issues requiring a trial concerning whether consideration was provided for a "Warranties and Bill of Sale" document signed by Ms. Jesseau and whether the action was statute-barred under the Limitations Act.

The court granted Ms. Jesseau leave to amend her pleadings and ordered further amplification of the record through viva voce evidence to resolve the enforceability of the Warranty.

The plaintiff lender moved for summary judgment to recover a mortgage deficiency following a power of sale.

The defendant admitted signing the mortgage but alleged she had been used as a dupe in a fraudulent mortgage scheme and asserted defences including non est factum, negligent lending, and breach of fiduciary duty, while advancing a counterclaim for damages.

The court held that the defendant produced no evidence supporting the alleged fraud or any involvement by the lender or its employees.

The record contained only speculative allegations and the defendant failed to put her best foot forward with admissible evidence.

Summary judgment was granted enforcing the mortgage and dismissing the counterclaim.

The defendants brought a motion to set aside a default judgment granting the plaintiff possession of mortgaged property.

The court applied the test from Bayview Financial, L.P. v. Spartan Collision Corporation, requiring promptness in bringing the motion, a plausible explanation for the default, and an arguable defence on the merits.

Although the defendants provided a plausible explanation for the delay and moved relatively promptly after learning of the judgment, they failed to demonstrate a genuine or arguable defence to the mortgage default claim.

The motion to set aside the default judgment was therefore dismissed.

However, the court temporarily restrained enforcement of the judgment for 20 days to allow the defendants time to finalize financing to satisfy the debt and made no order as to costs.

Counter-applicants sought relief relating to a commercial property, including vacating an existing Certificate of Pending Litigation (CPL) registered by the applicants and obtaining leave to register their own CPL.

The moving parties alleged they advanced substantial funds to entities controlled by an individual who promised mortgage security but failed to properly register it, and that fraudulent transfers of mortgage interests had occurred.

The court found that the counter-applicants had demonstrated a reasonable claim to an interest in land and that there remained triable issues regarding the validity of the mortgage interests.

Although the applicants had not prosecuted their claim diligently, the court declined to discharge the existing CPL at this stage given the procedural posture and ongoing litigation.

Leave was granted to the counter-applicants to issue a CPL while the earlier CPL remained in place.

A bankruptcy trustee sought directions regarding priority disputes over proceeds of sale from the bankrupt’s property.

The dispute concerned competing claims by a judgment creditor and two mortgage holders.

The court considered the validity of a mortgage granted to an accounting firm for tax services and a later mortgage granted to a lawyer securing unpaid legal fees.

Applying the Bankruptcy and Insolvency Act and the Assignments and Preferences Act, the court held that the earlier mortgage was valid and enforceable but that the later mortgage constituted a preferential transfer granted when the debtor was on the eve of insolvency.

The preferential mortgage was declared void and the proceeds of sale were ordered distributed accordingly.