Rosemary Anne Fisher

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.

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.

This complex appeal arises from a multi-million dollar commercial real estate fraud perpetrated by Norma and Ronauld Walton over several years.

The appellants (DBDC Applicants) and respondents (Schedule C investors) were all victims of the fraud.

The central issue on appeal concerns the priority of claims against proceeds from the sale of properties acquired as part of the fraudulent scheme.

The appellants sought damages against the Listed Schedule C Companies on the basis of knowing assistance in breach of fiduciary duty, while the respondent DeJong sought constructive trusts over certain properties.

The majority allowed the appeal in part, finding the Listed Schedule C Companies jointly and severally liable for $22.6 million in damages for knowing assistance, but set aside the constructive trust awards to DeJong.

The dissent disagreed with the knowing assistance finding, arguing the net transfer analysis was insufficient to establish participation by the Listed Schedule C Companies in the breach of fiduciary duty owed to the appellants.

Judgment creditors brought an application seeking approval of a proposed agreement of purchase and sale for a commercial property or, alternatively, the appointment of a receiver in aid of execution to facilitate enforcement of a monetary judgment.

The court reviewed the governing principles for appointing an equitable receiver, including the requirement for special circumstances where traditional execution mechanisms would be ineffective or impractical.

The evidence demonstrated that the judgment debtors failed to comply with settlement timelines requiring sale or refinancing of the property and did not adequately cooperate with the sales process.

Given delays, conflicting interests among stakeholders, and concerns that the existing listing process did not satisfy the Soundair principles for court-supervised asset sales, the court concluded that a receiver-controlled sales process was necessary.

A receiver was therefore appointed with authority to market and sell the property, and partial indemnity costs were awarded to the applicants.

The defendant brought a motion under Rule 51.06 seeking dismissal of the action based on alleged admissions concerning the lease and the proper party to advance the claim.

The plaintiff also moved under Rules 5.04(2) and 26.01 to amend its statement of claim to add several affiliated corporate plaintiffs asserting losses arising from the failure of a franchised coffee shop allegedly caused by the landlord’s breach of a commercial lease.

The court held that the defendant failed to establish the stringent requirements for judgment based on admissions under Rule 51.06 because material factual and legal issues remained for trial, including interpretation of the lease obligations regarding paving.

The court further held that adding the proposed corporate plaintiffs after the expiry of the two‑year limitation period constituted the addition of new parties rather than correction of a misnomer.

Relying on appellate authority, the court found that the proposed amendment would violate the Limitations Act, 2002 and cause non-compensable prejudice to the defendant.

The defendant brought a motion under Rule 51.06 seeking dismissal of the action based on alleged admissions concerning the lease and the proper party to advance the claim.

The plaintiff also moved under Rules 5.04(2) and 26.01 to amend its statement of claim to add several affiliated corporate plaintiffs asserting losses arising from the failure of a franchised coffee shop allegedly caused by the landlord’s breach of a commercial lease.

The court held that the defendant failed to establish the stringent requirements for judgment based on admissions under Rule 51.06 because material factual and legal issues remained for trial, including interpretation of the lease obligations regarding paving.

The court further held that adding the proposed corporate plaintiffs after the expiry of the two‑year limitation period constituted the addition of new parties rather than correction of a misnomer.

Relying on appellate authority, the court found that the proposed amendment would violate the Limitations Act, 2002 and cause non-compensable prejudice to the defendant.

The court heard several pre‑trial motions in a business dispute involving alleged partnership interests and related claims.

The defendants sought to exclude evidence arising from mediation meetings and related communications on the basis of settlement privilege.

The court held that discussions during meetings arranged to mediate the dispute were bona fide settlement negotiations conducted in contemplation of litigation and therefore protected by settlement privilege.

However, alleged statements made to a third party regarding destruction of financial records were not protected because there was no evidence of a common intention to engage in settlement discussions.

The court also addressed requests for witnesses to testify by Skype, permitting remote testimony for one peripheral witness but requiring in‑person testimony for another whose evidence was central to a spoliation claim.

The court provided procedural directions for a consolidated trial involving corporate oppression claims, family law claims, and disputes over alleged ownership interests in several companies and properties.

Multiple parties proposed competing structures for the order in which the issues should be tried.

The court held that the determination of ownership interests in the companies and properties must occur first before any remedies could be considered, as premature remedies could prejudice other parties’ claims.

The court rejected a proposal to resolve one party’s oppression action in its entirety before the others and instead structured the trial into staged phases addressing ownership, family law and corporate claims, and finally remedies.

The court also imposed strict deadlines for motions, disclosure, and examinations prior to trial.

The court addressed three related proceedings involving family law claims and corporate oppression claims concerning ownership and profits of several closely held companies.

The issues included whether a former spouse retained a share interest in corporate entities following separation agreements and whether other parties were entitled to equity interests or damages relating to the same companies.

The court determined that the proceedings involved overlapping factual issues concerning share ownership, corporate value, and entitlement to profits.

To avoid inconsistent findings, duplication of evidence, and unnecessary costs, the court ordered that the three proceedings be tried together as a single consolidated trial under Rule 6.01 of the Rules of Civil Procedure.

Procedural directions were issued governing pleadings, motions, and scheduling of the unified trial.