Ryan Shah

The Court of Appeal issued a costs decision following an appeal where success was divided.

The appellant succeeded in setting aside a permanent stay of proceedings due to a change in the law, but the court remitted the stay motion for reconsideration rather than finding no abuse of process.

The respondents successfully resisted an order relating to disclosure and an Anton Piller issue.

Consequently, the court ordered each party to bear their own costs of the appeal.

The costs of the original stay motion were reserved to the judge rehearing the motion, or to be resolved under r. 37.09(3) of the Rules of Civil Procedure if the motion is abandoned.

The appellant appealed an order staying the proceedings below.

The motion judge had found an abuse of process based on the appellant's failure to immediately disclose settlement agreements, relying on the Handley Estate doctrine.

However, this doctrine was overruled by the Court of Appeal in 1086289 Ontario Inc. (Urban Electrical Contractors) v. Welland (City), 2026 ONCA 352, after the motion judge's order.

The Court of Appeal held that the motion judge's decision was based on an unduly rigid inquiry that did not consider actual prejudice, as is now required.

The appeal was allowed, the stay was set aside, and the matter was remitted to the motion judge for re-determination under the current law.

The appellants, a real estate developer and related corporate entities, appealed a judgment granting the respondent lender $12.9 million plus interest on a defaulted commercial loan.

The appellants argued the application judge erred by failing to convert the application to an action, by conducting a credibility analysis on a paper record, and by foreclosing a defence of equitable set-off and counterclaim.

The Court of Appeal found the application judge's reasons were clear and sufficient, the documentary record amply supported the finding that no binding second amending agreement was ever reached, and credibility assessments were not necessary given the strength of the documentary evidence.

The court declined to resolve whether the enhanced fact-finding powers available under r. 20 apply to applications under r. 14, leaving that question for another day.

The appeal was dismissed and full indemnity costs of $55,000 were awarded to the respondent pursuant to the contractual costs clause in the loan agreement.

In a CCAA proceeding involving a substantially completed condominium development, the Applicant sought orders approving a Unit Sale Process for unsold units, a Construction Lien Claims Process, and ancillary relief including a stay extension and DIP facility increase.

The Court granted the orders, sealing the Target Price List for the unsold units to protect commercial sensitivity, and staying a regulatory proceeding by the Home Construction Regulatory Authority to revoke the Applicant's license, finding the license essential to the restructuring and sale process.

In the context of a receivership involving a partially constructed residential development, the debtors' representative sought to appeal orders approving a sales process and specific vesting orders.

The Receiver brought a motion declaring no appeal as of right existed, while the debtors sought an extension of time and leave to appeal.

The Court of Appeal held there was no appeal as of right under s. 193(c) of the Bankruptcy and Insolvency Act because the debtors failed to demonstrate a direct loss exceeding $10,000.

The Court also denied leave to appeal, finding the proposed appeal lacked merit, raised no issues of general importance, and would unduly hinder the progress of the receivership.

The appellant challenged orders in bankruptcy proceedings including standing rulings, estate consolidation, and treatment of approved claims.

The court found no right of appeal under s. 193(a) or (c) of the BIA, declined leave under s. 193(e), and held the appellant had not timely invoked available statutory claim-challenge mechanisms.

The appeal was dismissed.

Following the release of the Court's decision on the appeal, submissions were received regarding the apportionment of costs.

The Court fixed costs of the appeal payable to the Receiver, the respondent 100 Ontario Inc., and the respondent Issam A. Saad, each in the amount of $15,000.

The appellant entered into an Agreement of Purchase and Sale with a court-appointed receiver to purchase real estate.

The receiver brought a motion for approval and vesting.

However, late-breaking offers emerged, including one 37% higher than the appellant's offer.

The motion judge declined to approve the sale and instead ordered a six-day extension of the bidding process.

The appellant appealed, arguing the motion judge misapplied the principles from Royal Bank of Canada v. Soundair Corp. The Court of Appeal dismissed the appeal, finding the motion judge properly exercised discretion in reopening the auction process given the magnitude of the late offer and the receiver's alternative recommendation.

This is a costs decision following the applicant's successful recovery of a loan in the principal amount of approximately $14 million plus accrued interest.

The applicant sought full indemnity costs of $125,890 based on a provision in the loan agreement, while the respondents argued for partial indemnity costs of $50,000.

The court found that the loan agreement provision was sufficiently clear to encompass enforcement costs and awarded substantial indemnity costs of $108,000 inclusive of fees, HST and disbursements.

The Receiver sought an order for discharge and release, approval of its Third Report, statement of receipts and disbursements, and fees.

The Court declined to grant the discharge, citing CBJ’s unauthorized commencement of actions in Ontario and Alberta in breach of the Receivership Order.

The Court found CBJ’s disregard for court orders troubling and noted the lack of contrition or proper procedure to regularize its actions.

The motion for discharge was adjourned to allow for a more complete record and for the Receiver to advise on the value of the Ontario and Alberta actions to the estate.

This costs endorsement addresses the allocation of costs following a stay of proceedings due to the plaintiff’s failure to promptly disclose a settlement with certain defendants.

The court reviews the history of the Anton Piller Order, the Comeback Order, and the subsequent motions, ultimately awarding partial indemnity costs to the successful defendants, Marc Castillo and Castillo HR Consulting Inc., in the amount of $45,000.

The court declines to revisit costs already determined by a previous order and limits recovery to the portion of the motion related to the stay, excluding costs for the Anton Piller Order and preparation of a discovery plan.

The court granted judgment in favour of V2 Investment Holdings Inc. for a $12.9 million loan made to Sam Mizrahi and related corporate respondents, finding the debt liquidated and undisputed.

The respondents' arguments of bad faith and equitable set-off, based on alleged promises regarding mortgage registration and intercreditor agreements, were rejected as unsupported by the evidence.

The court found no binding agreement to amend the loan or enter a standstill, and no breach of the duty of honest performance.

Judgment was granted for the outstanding amount plus interest, with directions for further submissions on costs and interest calculations.

The court considered a motion by Marc Castillo and Castillo HR Consulting Inc. to stay the action for abuse of process due to Peninsula Employment Services Ltd.'s failure to immediately disclose settlement agreements with three former co-defendants.

The court found that the delayed disclosure of these agreements, which required the settling defendants to cooperate with the plaintiff, fundamentally altered the adversarial landscape and violated the strict requirement for immediate disclosure.

As a result, the action was permanently stayed.

The court also addressed, in obiter, the obligations of the Independent Supervising Solicitor regarding the production and accessibility of electronic documents seized under an Anton Piller Order.

The Trustee, KSV Restructuring Inc., sought substantive consolidation of the estates of ProEx Logistics Inc., Guru Logistics Inc., and 1542300 Ontario Inc., as well as authorization to accept claims by Paul Randhawa and to approve the Trustee’s reports.

The court granted substantive consolidation and approved the Trustee’s reports, but declined to authorize the Trustee’s acceptance of Paul’s claims, holding that the Bankruptcy and Insolvency Act provides a comprehensive code for the allowance and disallowance of claims, and that equity owners such as Rana Randhawa have no standing to challenge the Trustee’s decision to accept a claim.

The decision also addresses the effect of outstanding costs awards on standing and the finality of proceedings.

This motion concerned the approval of a sale process and transaction by The Fuller Landau Group Inc., acting as Receiver, for the Real Property owned by the Debtor, Chacon Strawberry Fields Inc. The Receiver sought approval for the sale, a vesting order, and an interim distribution to the first secured lender, First Source Financial Management Inc. The respondents (debtors) requested an adjournment and access to confidential sale information to facilitate a redemption, while a third-party (unsuccessful bidder) sought consideration of a late offer.

The court denied the respondents' and third-party's requests, finding their redemption plan insufficient and their attempts to interfere with the established sales process inappropriate.

The court granted the Receiver's motion in its entirety, approving the sale, vesting order, interim distribution, and a sealing order for commercially sensitive information, affirming the integrity and efficacy of the court-supervised sales process.

The plaintiff sought damages from the defendant, Economical Mutual Insurance Company, alleging a breach of contractual duty of honest performance in the denial of a mutual homeowners insurance policy.

The plaintiff claimed entitlement to a payment received by mutual policyholders during the company's demutualization process.

The court found that the plaintiff's application material did not meet the defendant's underwriting standards for a mutual policy, specifically regarding a two-family dwelling with a rented basement suite.

The court dismissed the plaintiff's claim, finding no breach of the contractual duty of honest dealings.