Santiago Hernan Costa

This motion endorsement addresses two motions: one by 1746878 Ontario Inc. to stay a finding of contempt against it, and an oral cross-motion by Pollard Windows Inc. alleging continued contempt by Andrew Ferri.

The court applied the RJR-MacDonald test for a stay, finding no serious issue to be tried as 1746878 Ontario Inc. had previously admitted contempt.

The court also found no irreparable harm.

Consequently, the motion to stay the contempt finding was dismissed.

The court further dismissed Pollard Windows Inc.'s oral motion, clarifying that the prior order against Andrew Ferri precluded him from participating in proceedings but not from acting as a director of 1746878 Ontario Inc.

This motion determined priority between creditors following a judicial sale of a residential property.

Pollard Windows Inc., a construction lien claimant, sought priority over 1746878 Ontario Inc., an assignee of a mortgage.

The court found that the mortgage held by 1746878 Ontario Inc. was a fraudulent conveyance, part of a scheme by the controlling individual (Andrew Ferri) and related entities to defeat creditors.

The court rejected 1746878 Ontario Inc.'s claims of priority, finding that the alleged notice of sale was invalid, it failed to prove any actual advances under the mortgage, and the transaction bore numerous badges of fraud.

Pollard Windows Inc. was granted priority for its judgment and costs.

Dew Point Insulation Systems Inc. brought a claim under the Construction Lien Act against Aqua Mechanical Contracting Ltd., Metrolinx, and Grascan Construction Ltd. for unpaid services and materials.

Aqua defaulted, and Metrolinx was discontinued.

The primary issue at trial was whether security posted by Grascan to vacate Aqua's lien could be used to satisfy Dew Point's claims, including costs and pre-judgment interest, beyond the security posted for Dew Point's own lien.

The court held that the security posted for Aqua's lien could be notionally pooled with Dew Point's lien security to satisfy Dew Point's claims, costs, and pre-judgment interest, relying on the principle that all persons having lien claims are entitled to distribution from the pooled security.