Rosemary Anne 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.

Costs decision following two motions: the plaintiff trustee in bankruptcy's summary judgment motion against the corporate defendant for unpaid invoices relating to frozen seafood products, which was dismissed, and the individual defendant's motion to dismiss the action against her personally, to which the plaintiff consented.

The court declined to award substantial indemnity costs based on the defendant's offer to settle, finding the offer required complete capitulation and was not a significant compromise.

Costs on a partial indemnity scale were fixed at $17,929.63 for the summary judgment motion and $2,034 for the dismissal motion, payable within 60 days.

The plaintiff trustee in bankruptcy brought a Rule 20 motion for summary judgment against a food and beverage wholesaler for $94,721.50 representing eight unpaid invoices for frozen seafood products.

The defendant denied placing any orders after May 2023, asserting the products were delivered without a contract.

The court identified three concerns: absence of direct contractual evidence, no affidavit from the key Toppits sales representative who allegedly made the oral contracts, and credibility issues with the defendant's principal that required viva voce evidence to resolve properly.

Applying the two-step Hryniak framework, the court found it could not make a fair and just determination on the motion and dismissed the summary judgment motion, directing the matter to trial.

The appellants appealed a trial judge's decision regarding the beneficial ownership of four residential properties and a costs award.

The trial judge had found that funds advanced by the respondents were investments, not loans, and made findings on beneficial ownership and renovation quality based on witness credibility.

The Court of Appeal dismissed the appeal, upholding the trial judge's factual findings due to the high deference owed to such findings and the appellants' failure to provide a complete trial record.

Leave to appeal the costs award was denied as it was out of time and did not meet the high threshold for granting leave.

The court also rejected a new argument raised on appeal concerning the Statute of Frauds, as it was not raised at trial and the necessary record was incomplete.

The plaintiff brought a motion for summary judgment on a business loan against the corporate borrower and the individual guarantor.

The individual defendant argued she was told by a representative of the plaintiff that she would not be personally liable on the guarantee.

The court utilized its expanded fact-finding powers to hear oral evidence from the individual defendant.

The court found the defendant's evidence lacked credibility and concluded she knew she was guaranteeing the loan.

Summary judgment was granted for the outstanding loan amount.

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.

This is a costs decision following a successful appeal by the appellants.

The appellants sought recovery of costs from the respondents, specifically requesting the same amounts that had been awarded to them at first instance ($51,885.55 from Christine DeJong Medicine Professional Corporation and $14,017.28 from Dennis and Peggy Condos).

The respondents sought no costs, arguing that all parties were victims of fraud and that the contest was between victims.

The court awarded costs to the appellants as requested, finding this to be a just and fair disposition given that the appellants were successful on all aspects of the appeal and that no costs of the appeal had been awarded to them despite their success.

Following a successful appeal, the appellant sought costs for the motion appealed from and the related motion for leave to appeal.

The Divisional Court declined to award costs for the leave motion because the judge granting leave did not address costs in their order or reasons.

However, the court awarded the appellant costs of $12,500 for the attendance before the motion judge, finding it fair and reasonable that costs follow the event in the appeal.

The appellant client appealed a motion judge's order refusing to confirm an Assessment Officer's Report and Certificate regarding the respondent solicitor's accounts.

The solicitor had abandoned the assessment hearing after his adjournment request was denied.

The Assessment Officer reduced the accounts from over $1 million to $325,789.01.

The motion judge refused to confirm the report, finding the Assessment Officer's reasons inadequate and imposing an evidentiary burden on the client.

The Divisional Court allowed the appeal, holding that the motion judge erred in law by reversing the onus of proof, which rests entirely on the solicitor to prove the reasonableness of his fees.

Given the solicitor's failure to adduce any evidence, the Assessment Officer's reasons were adequate.

The applicant, estate trustee for the deceased common-law spouse, brought a motion to enforce an unsigned settlement agreement against the respondent estate.

The parties had exchanged correspondence agreeing to transfer a property to the spouse in exchange for a release of her dependent's relief and constructive trust claims.

Before formal minutes of settlement were signed, the spouse died, and the respondent estate refused to complete the transfer, arguing no binding agreement existed and that the spouse's death materially changed the circumstances.

The court found that a binding contract was formed when the essential terms were agreed upon in correspondence, and declined to exercise its discretion to refuse enforcement, ordering the net proceeds of the property sale to be transferred to the applicant.

The applicants, Dr. Bernstein's corporations, moved for judgment against Norma Walton, Ronauld Walton, and their companies for $66.9 million, alleging civil fraud and fraudulent misrepresentation, and sought a declaration that the debt would survive bankruptcy.

The Waltons brought a counter-application for damages and a cross-motion for a trial on the fraud issue.

Christine DeJong Medicine Professional Corporation and Gideon and Irene Levytam also sought relief regarding their investments.

The court found the Waltons liable for civil fraud and fraudulent misrepresentation, awarding the applicants $66.9 million plus interest, and declared the debt non-dischargeable in bankruptcy under s. 178(1)(d) and (e) of the BIA.

The Waltons' counter-application was struck as frivolous and vexatious.

The applicants' claims against Schedule C Companies for knowing assistance and knowing receipt were dismissed.

DeJong was granted constructive trusts over specific Schedule C properties for their investments due to the Waltons' breach of fiduciary duties.

The appellants, a lawyer and his professional corporation, appealed an order dismissing their motion to quash a Registrar's order for the assessment of 51 accounts rendered to the respondent client.

The appellants argued the accounts were for management services, the retainer was in dispute, and the requisition was untimely.

The Court of Appeal dismissed the appeal, finding the accounts were for legal services, the retainer was not in dispute, and the overlapping nature of the interim accounts constituted special circumstances justifying the timing of the assessment.

Following the dismissal of the appellants' appeal, the parties were unable to agree on costs.

The Court of Appeal awarded costs to the fully successful respondents on a partial indemnity basis, fixed at $10,000 all inclusive, noting the overlap of issues with a companion appeal.

In an ongoing insolvency proceeding, the DeJong appellants appealed a motion judge's order dismissing their cross-motion for a constructive trust and the cancellation of shares, while granting constructive trusts over certain properties to the Bernstein applicants.

The appellants argued the motions judge failed to adjudicate their requested relief, erred in applying tracing principles for constructive trusts, and failed to apply the correct legal test under the Assignments and Preferences Act regarding a proposed settlement agreement.

The Court of Appeal dismissed the appeal, finding no error in the motions judge's tracing analysis, his refusal to grant the requested relief to avoid preferring the appellants over other creditors, or his conclusion that the proposed settlement agreement constituted an unlawful preference.

The applicants and respondents entered into joint venture agreements to invest in commercial real estate projects through jointly owned companies.

The applicants discovered that the respondents were commingling funds, failing to make their required equity contributions, and diverting the applicants' funds to their own personal benefit and to companies they solely owned.

The court found that the respondents breached their contractual and fiduciary duties and were unjustly enriched.

The court imposed constructive trusts over several properties owned by the respondents, appointed a receiver over the respondents' assets, and cancelled the respondents' shares in the jointly owned companies where they had not contributed equity.

The Receiver of Atlas Block Co. Limited moved for approval of the distribution of net sales proceeds from certain assets between two secured creditors, RBC and BDC, and for approval of its allocation of fees and costs.

BDC objected to the distribution, arguing the purchase price allocation in the approved Asset Purchase Agreements undervalued the real property compared to historic appraisals.

The court rejected BDC's objection, noting BDC had not opposed the sale approval motion and the appraisals were dated and less reliable than the market-tested sale price.

The court also approved the Receiver's pro rata allocation of shared costs, finding it prima facie reasonable and noting BDC's delayed objection.