Ronald Jacob Aisenberg

Following a summary judgment granting the plaintiff lender judgment and dismissing the defendant borrower’s counterclaim alleging fraud, the court addressed costs.

The plaintiff sought substantial indemnity costs based on contractual mortgage provisions and unfounded allegations of fraud made in the defence.

Applying Rule 57.01 of the Rules of Civil Procedure and authorities regarding allegations of fraud, the court held that unproven accusations of fraud justified costs on a substantial indemnity scale.

However, the court reduced the hours claimed as excessive given the simplicity of the matter.

Total costs of $18,450.66 inclusive of HST and disbursements were awarded.

The plaintiff law firm appealed a Master's order dismissing its action for delay at a status hearing under Rule 48.14.

The plaintiff argued the Master erred by failing to balance the preference for determining cases on their merits against the need to discourage delay, and by rejecting its explanation that the file 'fell through the cracks'.

The Divisional Court dismissed the appeal, holding that recent appellate jurisprudence establishes the primary focus at a status hearing is whether the plaintiff has an acceptable explanation for the delay.

The Master applied the correct legal test and made no palpable or overriding error of fact in finding the plaintiff abdicated its responsibility to prosecute the action.

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.

The appellant tenant appealed a decision of the Landlord and Tenant Board terminating his tenancy for non-payment of rent, brought by the respondent mortgagee in possession.

The tenant argued the Board erred in its factual findings regarding notice and rent payment, and that the Board lacked jurisdiction because the premises were exempt under s. 5(j) of the Residential Tenancies Act.

The Divisional Court dismissed the appeal, finding no error of law in the Board's factual findings and noting that the jurisdictional argument was not raised before the Board.

Costs of $5,000 were awarded to the respondent.

The appellant tenant brought a motion to set aside a Registrar's Dismissal Order that dismissed his appeal from a Landlord and Tenant Board decision for failure to perfect the appeal on time.

The tenant explained the delay was due to financial inability to pay for transcripts and unfamiliarity with procedural requirements.

The court applied a contextual approach, finding the tenant moved promptly to set aside the order and the landlord would suffer no significant prejudice.

The motion was granted, the dismissal order was set aside, and the tenant was granted a short extension to perfect the appeal.

The appellant tenant appealed a Board order granting vacant possession to the respondent landlord, based on a finding that the leases were fraudulent.

On the morning of the hearing, the self-represented appellant requested an adjournment to retain counsel.

The Divisional Court denied the adjournment, noting the delay would prejudice the respondent's pending sale of the property.

The Court dismissed the appeal, holding that the Board's conclusion regarding the fraudulent leases was reasonable and based on credibility findings that the Court had no jurisdiction to review.

The appellant appealed a summary judgment granted in favour of the respondent bank.

The Court of Appeal set aside the summary judgment, finding that it would be unjust to decide the issues on a motion for summary judgment in the circumstances of the case.

The appellant was permitted to discover what happened to the monies and why they were not repaid to him.