Sanj Sood

In a proposed class action regarding promissory note investments, the plaintiff obtained a Norwich Order, Mareva Injunction, and a certificate of pending litigation without notice.

The moving defendants brought a motion to discharge the certificate of pending litigation and for damages.

The court found that while the initial ex parte orders were justified, the certificate of pending litigation should be discharged because the plaintiff's claim was essentially monetary and there was no close connection between the property and the alleged improper benefits.

The issue of damages for the registration of the certificate was deferred to trial.

The City of Thunder Bay applied for declaratory orders and specific performance to compel Canadian National Railway Company (CN) to reopen and perpetually maintain the James Street Swing Bridge for vehicular traffic.

The City argued that CN's perpetual maintenance obligation included upgrading the bridge to modern safety standards.

CN contended its obligation was limited to the original 1906 design and that reopening required significant structural reconfiguration beyond maintenance.

The Fort William First Nation supported the City's position.

The court dismissed the application, finding the City's proposals for reopening the bridge vague and lacking specificity, and that the evidence did not clearly define the required work or establish that such work fell within CN's contractual maintenance obligation.

A freight forwarding company sued a secured creditor and related individuals for unpaid shipping invoices after the debtor companies entered receivership.

The plaintiff alleged that an employee of the debtor companies acted as an agent of the secured creditor and assured that outstanding invoices would be paid if shipping continued.

The court held that the employee was not an agent of the secured creditor and that no actual or ostensible authority had been established.

Claims based on agency, negligent misrepresentation, breach of trust, and fiduciary duty failed with respect to pre‑receivership invoices.

However, an email from the secured creditor’s representative constituted a contractual promise regarding post‑receivership invoices, making the creditor liable for those amounts.

Following an earlier endorsement in a commercial dispute, the court issued a corrigendum to correct two matters raised by counsel.

First, the formal endorsement had omitted the judge’s decision striking a specific paragraph of the applicants’ amended amended application, which had previously been recorded only in a handwritten endorsement.

Second, the reasons incorrectly stated that a newly constituted board had approved the sale of a 10% share in a corporation to a respondent, when in fact the scheduled board meeting had not proceeded because the application had already been commenced.

The court clarified both issues and amended the reasons accordingly.

The plaintiff bank sought enforcement of a $400,000 personal guarantee executed by the responding party in connection with corporate loans extended to two companies he controlled.

The responding party argued the guarantee was corporate rather than personal because a corporate seal appeared beside his signature and advanced counterclaims including breach of contract, slander of title, and punitive damages relating to the lender’s enforcement of security and sale of mortgaged property.

The court held the loan documentation clearly required a personal guarantee and that the corporate seal was legally irrelevant.

The defendant’s interpretation was commercially unreasonable and contradicted by the surrounding contractual documents and conduct.

The court enforced the personal guarantee and dismissed all counterclaims.

The applicants brought an oppression application regarding a family investment company, Naim Investments Limited.

They alleged that the proposed sale of a 10% shareholding by an estate to a third party, Dr. Low, was a disguised sale to a rival family branch that would breach an unwritten control agreement and a written ownership restriction agreement.

The court found no evidence of a control agreement, determined that Dr. Low was an arm's length purchaser, and concluded that the election of a new board to approve the sale was a proper exercise of corporate governance to resolve a deadlock.

The application was dismissed with costs.

The plaintiffs sought leave under s. 103(6) of the Courts of Justice Act and Rule 42.02 of the Rules of Civil Procedure to issue a certificate of pending litigation in relation to a dispute over the right to remove and sell cable fixtures from industrial property pursuant to an asset marketing agreement.

The court held that the plaintiffs established a triable issue regarding an interest in land because the agreement granted rights to enter the land, remove fixtures, and enforce a security interest over them.

However, applying the equitable discretion and the Dhunna factors, the court found that the cable was not unique and that damages were readily quantifiable and would constitute an adequate remedy.

The court concluded that issuing a CPL would cause disproportionate prejudice to the property owner compared to the plaintiffs’ ability to recover damages.

Leave to issue the certificate of pending litigation was therefore refused.

The moving party sought leave to bring a post-set-down motion, to strike the defence and counterclaim for non-compliance with prior orders, and judgment; alternatively, it sought compliance orders, dispensation of mediation, trial scheduling directions, a stay of prior costs, and motion costs.

The court found ongoing non-compliance with obligations to appoint counsel or file intention to act in person after removal of counsel of record.

The court declined to strike the defence and counterclaim but granted the requested alternative procedural relief, including compliance deadlines, dispensing with mediation, and requiring attendance at Trial Scheduling Court.

Costs were fixed at partial indemnity and set off against prior costs, with net costs remaining payable by the moving party and payment stayed pending trial.

The appellants, guarantors of a corporate debt, appealed a summary judgment enforcing their guarantee and dismissing their counterclaim for conspiracy.

The debt and guarantee had been assigned to the respondents, who sued for the shortfall after the debtor's assets were sold in insolvency proceedings.

The Court of Appeal dismissed the appeal, finding the guarantee permitted assignment without consent and there was no evidence to support the appellants' claim that the assets were sold below fair market value due to a conspiracy.

The appellant Township appealed a decision setting aside a master's order that required the respondent to deliver a further and better affidavit of documents.

The master's order was based on admissions made by the respondent in response to a request to admit regarding the existence of documents proving damages.

The Divisional Court dismissed the appeal, holding that using a request to admit to force a party to state whether it has documents evidencing damages is improper and a nullity.

Consequently, the respondent's admissions were also a nullity, and the appeal judge did not err in setting aside the master's order.

The respondent property owner initially sought retroactive reclassification of his property, but amended his application to seek a fairness hearing regarding his municipal taxes.

The application judge reduced the respondent's taxes owing to $3,000, relying on inherent and equitable jurisdiction.

The municipality appealed.

The Divisional Court allowed the appeal, holding that the Assessment Act and Municipal Act provide a comprehensive statutory mechanism for tax assessment and collection, and the application judge lacked jurisdiction to circumvent this framework to alter property classifications or reduce taxes.

The appellant appealed a charging order made under s. 34(1) of the Solicitors Act in favour of the respondent law firm.

The respondent moved to quash the appeal, arguing the order was interlocutory.

The Court of Appeal held that a charging order finally determines the solicitor's rights and is therefore a final order, dismissing the motion to quash.

On the merits, the Court found no error in the motion judge's application of the conditions for a charging order and dismissed the appeal, awarding costs to the respondent.