Salma Sheikh

This costs endorsement follows a hybrid trial where the applicants were largely successful against several respondents concerning an invalid power of sale, but unsuccessful against Ginkgo Mortgage Investment Corporation.

The court awarded partial indemnity costs to the applicants against the unsuccessful respondents, with a several order for payment.

The court also fixed partial indemnity costs payable by the applicants to Ginkgo, declining to issue a Sanderson order after applying the two-step test.

Subsequent mortgagees challenged the validity of a first mortgagee’s power of sale of a Toronto property, alleging they were never served with the required notice and that the notice misstated the amount owing under the mortgage.

The court found the notice of sale had not been served on the subsequent encumbrancers due to a mailing error and that the amount claimed owing was materially overstated through the improper inclusion of pre‑assignment expenses.

As a result, the statutory requirements of the Mortgages Act were not satisfied and the power of sale was invalid.

The purchaser was a bona fide purchaser for value but had actual notice that the validity of the sale was being challenged and therefore could not rely on statutory protections for “professed compliance.” The purchaser and related subsequent mortgagees did not obtain valid title or charges as against the applicants, though the independent first mortgagee lender retained a valid interest.

The plaintiff obtained an ex parte order for the interim recovery of personal property (geosynthetic clay liner and related materials) after the defendant failed to pay a $30,006 invoice that included a retention of title clause.

The defendant moved to set aside the order, arguing the property was defective, had already been installed, and that the seized property belonged to a third party.

The court dismissed the defendant's motion, finding the plaintiff met the 'substantial grounds' test for interim recovery of chattels, but amended the order to allow the defendant to recover the property by paying the invoice amount into court as security.

The applicant sought a determination under the Repair and Storage Liens Act regarding whether the respondent had a valid lien for storage fees relating to the applicant’s boat.

The applicant argued that the boat had been stored without charge, while the respondent asserted entitlement to storage fees and a lien permitting retention or sale of the boat.

The court found the boat had been stored since August 2010 and that reasonable storage fees were payable despite the absence of a formal lease.

Applying the statutory framework, the court held the respondent had a valid storage lien and could retain possession or sell the boat to satisfy the debt.

The applicant was ordered to pay accrued storage fees and costs.

The applicant sought a determination under the Repair and Storage Liens Act regarding whether the respondent had a right to a lien for storage fees on his boat.

The applicant claimed he was allowed to store the boat for free, while the respondent claimed unpaid storage fees.

The court found that the applicant stored his boat at the respondent's commercial premises and owed reasonable storage fees.

The court held the respondent was entitled to a storage lien, lifted the interlocutory injunction prohibiting the sale of the boat, and ordered the applicant to pay $8,672.00 in outstanding fees plus costs.

The plaintiff landlord brought a motion for summary judgment for damages arising from an alleged breach of a commercial lease and sought dismissal of the defendants’ counterclaim.

The defendants alleged, among other things, that a large upfront payment characterized by the plaintiff as a lease commission was in fact a security deposit and raised claims of coercion, breach of trust, unequal bargaining power, and improper calculation of damages.

The court held that numerous genuine issues requiring a trial existed, including the nature of the disputed payment, credibility issues regarding the parties’ intentions, and the accuracy of damage calculations.

The court also dismissed summary judgment motions brought by third parties seeking dismissal of the third party claim.

Costs of $20,000 were awarded to the defendants.