Rosemary A. Fisher

A court-appointed receiver brought a motion to amend an Approval and Vesting Order to correct the inadvertent inclusion of three instruments in Schedule C — two municipal encroachment registrations and a statutory Metrolinx transit corridor notice — that neither party intended to be expunged from title.

On an enhanced evidentiary record, the court found on a balance of probabilities that the error arose from counsel's inadvertence in attaching an earlier unvetted draft.

Applying the Sattva framework, the court held that the Metrolinx Registration constituted a Permitted Encumbrance under the APS, as it was a statutory notice arising by operation of law reflected in any laws affecting the lands and known to the parties at the time of contracting.

The court confirmed jurisdiction to amend the order under both s. 187(5) of the Bankruptcy and Insolvency Act and Rule 59.06(1) of the Rules of Civil Procedure, finding the AVO failed to express the court's manifest intention to approve the parties' bargain.

The purchaser's purported termination of the APS was held to be ineffective because the AVO as contractually defined could not be delivered until the drafting error was corrected.

Costs of $10,000 were awarded to the Receiver.

Following a trial regarding four real estate transactions where the plaintiffs achieved substantial success, the court determined the quantum of costs.

The plaintiffs sought $579,834.02 on a full indemnity basis, citing the defendants' unreasonable conduct and misrepresentations, while the defendants argued for a lower amount.

Applying principles of reasonableness, fairness, and proportionality, the court fixed costs at $400,000 inclusive of fees, disbursements, and taxes, payable jointly and severally by the defendants.

The plaintiffs and defendants engaged in a series of real estate transactions involving four properties, operating largely on oral agreements.

Disputes arose regarding the beneficial ownership of the properties and claims for renovation work performed by the defendants.

The court applied principles of oral contract formation and resulting trust to determine the parties' respective interests based on their financial contributions.

The court found largely in favour of the plaintiffs, granting them sole ownership of two properties, a majority interest in a third, and a half interest in the fourth, while dismissing the defendants' counterclaim for defective renovation work.

The Proposal Trustee brought a motion under s. 65.13 of the Bankruptcy and Insolvency Act to approve the sale of two licensed retirement homes owned by the insolvent debtors.

The second mortgagee opposed the sale, arguing the sales process was flawed, the price was below market value, and it was denied the opportunity to properly value the properties.

The court found the sales process was reasonable given the debtors' insolvency and the imminent expiration of their operating licenses.

The court also found the sale price was fair based on independent appraisals and granted the motion to approve the sale, along with a sealing order over the appraisal exhibits.

The self-represented defendant brought a motion to compel answers to questions refused by the plaintiff's employees during cross-examinations on their affidavits filed in support of a summary judgment motion.

The defendant sought production of the plaintiff's entire loan files and answers regarding employee targets and knowledge of regulations.

The court dismissed the motion, finding that the requests amounted to a fishing expedition, lacked relevance to the issues on the summary judgment motion, and failed to meet the principle of proportionality under the Rules of Civil Procedure.

The defendants brought a motion to set aside a default judgment entered against them regarding a failed real estate transaction.

They argued they were not properly served with the statement of claim and were noted in default one day early.

The court found that while personal service was not effected and the noting in default was premature by one day, the defendants had actual notice of the claim and failed to act promptly or present a tenable defence.

The court exercised its discretion to validate service and dismissed the motion to set aside the default judgment.