Scott A. Rosen

The plaintiff mortgagor defaulted on a matured mortgage.

The defendant mortgagees issued a Notice of Sale claiming the principal, regular interest, and an additional three months' interest pursuant to section 17 of the Mortgages Act.

The plaintiff paid the amount under protest to discharge the mortgage and brought an action to recover the three months' interest.

On cross-motions for summary judgment, the court held that once a mortgagee issues a Notice of Sale to realize on its security after maturity, it cannot unilaterally impose a three-month interest penalty under section 17.

The plaintiff was granted summary judgment for the recovery of the disputed interest.

Applejack Developments Inc. sought summary judgment against 2294894 Ontario Inc. for $500,000 based on a promissory note and amending agreements.

The defendant 2294894 Ontario Inc. argued lack of consideration, as funds were paid to a joint venture partner (2305992 Ontario Inc.), and that the claim was statute-barred under the Limitations Act.

The court found that the defendant failed to rebut the presumption of consideration, noting that payment to a joint venture partner constituted consideration.

The court also dismissed the limitation period argument, finding that the due date for the promissory note was automatically extended, making the action timely.

Summary judgment was granted to the plaintiff.

This is a costs decision following a trial in a construction lien matter where the plaintiff, Marlene McCloy, was largely successful.

The court awarded partial indemnity costs to McCloy for the period up to June 29, 2016, and substantial indemnity costs thereafter, pursuant to Rule 49.10(1) of the Rules of Civil Procedure, as McCloy's offers to settle were more favourable than the trial outcome.

The court declined to award costs personally against the defendant's counsel, Michael E. Freeman, despite frustrating conduct, accepting his explanations of weather delays and a Parkinson's flare-up.

Total costs awarded to McCloy against Bennett were $77,995.03, plus prejudgment interest.

Greenfix Golf Inc. sued Sportcover International Inc. for breach of a distribution agreement, alleging unpaid minimum royalties.

Sportcover defended by arguing the minimums were not payment obligations but protection against early termination, and counterclaimed for negligent misrepresentation.

The court found that the distribution agreement clearly stipulated annual minimum royalty payments and rejected Sportcover's interpretation.

The court also dismissed Sportcover's defenses of estoppel and waiver, and its counterclaim for negligent misrepresentation, finding no detrimental reliance or valid misrepresentation.

Damages were awarded to Greenfix based on the unpaid minimum royalties, and the court found no duty to mitigate under the "lost volume" principle given the non-exclusive nature of the agreement.

The applicant landlord sought a declaration that rental arrears were not released or forgiven by a lease extension agreement entered into with the respondent tenants.

The tenants argued that the arrears were wiped out and that they were entitled to a separate allowance under the agreement.

Applying the objective theory of contract formation and considering the factual matrix, the court found that the arrears were folded into the increased monthly rent and that the tenants were not entitled to a separate allowance without corresponding consideration.

The court granted the landlord's application for declaratory relief.

The plaintiffs were entirely successful at trial in an action regarding the ownership of a valuable piece of real estate.

They sought costs on a partial indemnity basis in the amount of $46,895.40, plus an additional $1,500 for attendances to settle the judgment.

The defendant argued that no costs should be awarded because the litigation was caused by the plaintiffs' failure to document their intentions clearly, or alternatively, that the costs sought were excessive.

The court rejected the defendant's argument for no costs and awarded the plaintiffs $37,500, finding this amount fair and reasonable given the scope of the engagement, the length of the trial, and the complexity of the issues.

The applicants sought declarations under s. 248 of the Ontario Business Corporations Act that the moving party beneficially owned 50% of the shares of a corporation formed in connection with a logistics business restructuring and that a shareholder loan of approximately $2.8 million was owed.

The respondents denied that any binding agreement or partnership existed and asserted that payments made were loans.

The court found overwhelming objective evidence that the parties had agreed to a 50/50 partnership and share ownership arrangement, including communications, conduct toward third parties, and treatment of a $3.5 million invoice representing the value of services contributed to the restructuring.

The court concluded that the respondent’s subsequent exclusion of the applicant from corporate management was oppressive.

As a remedy, the court ordered a buyout of the applicant’s 50% interest at fair value to be determined through an independent valuation process and confirmed the existence of the shareholder loan.

The appellants appealed a trial judgment regarding a claim for indemnity by Tarion Warranty Corporation.

The central issue was whether Tarion's claim was caught by s. 18 of the Limitations Act.

The Court of Appeal dismissed the appeal, holding that s. 18 did not apply because Tarion was not sued.

The limitation period did not begin to run until Tarion paid out money to a third party, meaning the claims were brought within the applicable limitation period.

The appellants agreed to purchase a home from the respondent for $2.9 million, but the transaction failed to close.

The trial judge found that the appellants repudiated the agreement and forfeited their $75,000 deposit, declining to grant relief from forfeiture despite the property later selling for more.

On appeal, the appellants argued the respondent had repudiated the contract by failing to close on the required date.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the contract remained alive until the appellants chose not to proceed, and that retaining the deposit was not unconscionable.

The respondents in the main application brought motions to disqualify the applicants' solicitor and for security for costs, but withdrew them shortly before the return date.

The parties appeared to argue costs.

The court found no basis for the disqualification motion and awarded partial indemnity costs to the applicants.

For the security for costs motion, the court awarded costs incurred after the date a related Michigan action was dismissed, as the respondents delayed in withdrawing the motion.

The court fixed the applicants' total costs for both motions at $12,500 on an all-inclusive basis.

In a receivership-related motion arising from alleged fraudulent investment activities, the receiver sought authorization to utilize frozen funds held by entities subject to prior court orders to pay ongoing investigation costs.

The court held that the circumstances differed from typical insolvency proceedings because many affected entities were not parties and no specific allegations had been pleaded against them.

Exercising discretion under the prior freezing order, the court declined to allow prepayment of the receiver’s investigative expenses from the frozen funds.

The court also rejected a request for a sealing order due to the strong presumption of open courts but granted a confidentiality order restricting the receiver from voluntarily providing information to tax or criminal authorities.

Costs were not awarded due to divided success.

A dispute arose over entitlement to a $75,000 deposit following the failed closing of a residential real estate transaction governed by an Agreement of Purchase and Sale.

The contractual closing date passed without either party being ready to close, leaving the agreement alive and permitting either party to re‑establish time of the essence by fixing a reasonable new closing date.

The purchasers subsequently declared they would not proceed and sought a mutual release, asserting the vendor was in breach.

The court held the purchasers repudiated the agreement without first setting a new closing date or reinstating time of the essence.

The vendor later properly re‑established a closing date and tendered; the purchasers refused the tender.

Relief from forfeiture was denied and the deposit was ordered released to the vendor.

The appellants appealed a trial judgment, arguing the trial judge failed to consider relevant evidence and erred in his reasoning regarding a house lease and a barn lease.

The Court of Appeal found no error, noting it was open to the trial judge to accept the respondent's evidence and to consider the house lease for the purpose of determining the quantum of unjust enrichment.

The appeal was dismissed.

Following the dismissal of a motion brought under Rule 45.02 of the Rules of Civil Procedure, the successful defendants sought costs of the motion.

The motion had been brought on very short notice and sought relief akin to a Mareva-type injunction, requiring the defendants to respond urgently.

The defendants requested substantial indemnity costs, while the plaintiff argued the matter was simple and proposed a modest costs award.

The court found the motion was not simple and that the defendants had been placed in a difficult position by the short notice, but held that the circumstances did not justify substantial indemnity costs.

Costs were therefore awarded on a partial indemnity basis.

The moving party sought an order under Rule 45.02 of the Rules of Civil Procedure requiring $1.1 million from the proceeds of the sale of a Hamilton property to be paid into court for interim preservation pending litigation.

The dispute arose from a property investment arrangement between long‑time associates, where the moving party alleged entitlement to a proportionate share of the profits based on funds invested.

The court held that the moving party did not establish a proprietary claim to a specific fund because he was merely an investor and had no proprietary interest in the sale proceeds held in an investment account.

Even if the first branches of the test were met, the balance of convenience did not favour the order as there was no evidence the responding parties intended to dissipate assets or frustrate enforcement of a potential judgment.

The motion was therefore dismissed with costs.

The applicant sought a bankruptcy order against the respondent, her estranged spouse, relying primarily on arrears of spousal support enforced through the Family Responsibility Office.

The respondent argued the application was brought for an improper collateral purpose and that the alleged debt was subject to a bona fide dispute in ongoing family and civil proceedings concerning allegations of fraud involving family businesses and a request to set aside the separation agreement.

The court held that bankruptcy proceedings should not be used to obtain collateral litigation advantages and that the support obligations and related financial issues were actively disputed in other proceedings.

Exercising discretion under s. 43(7) of the Bankruptcy and Insolvency Act, the court concluded there was sufficient cause to dismiss the bankruptcy application.

Following a trial involving a dispute over a claimed leasehold interest and alleged obligations to improve leased premises, the plaintiffs’ claim was dismissed and the defendants succeeded on a counterclaim for rent arrears in the amount of $120,000 plus prejudgment interest.

The successful defendants sought recovery of legal costs on a partial indemnity basis.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court assessed the reasonableness of the claimed fees and disbursements.

The court reduced amounts relating to certain research, an unsuccessful motion for possession, and certain disbursements.

Costs were fixed at $33,900 in fees plus $2,681.43 in disbursements inclusive of tax.

The plaintiffs alleged they had entered into a four-year lease of rural property to operate a horse boarding and breeding business and claimed the landlords were obliged to repair and complete the barn and related facilities before rent became payable.

They sought damages for lost profits after the property allegedly remained unusable.

The defendants denied any such agreement, asserting that only limited draft leases existed and that the only executed lease concerned the residential portion of the property.

The court found no agreement requiring the defendants to complete repairs and held that the draft leases, which imposed repair obligations on the tenants and contemplated shorter terms, were the best evidence of the parties’ intentions.

The plaintiffs’ claim was dismissed, possession was ordered to the defendant companies, and judgment was granted on the counterclaim for unpaid rent relating to the house lease.

The appellant moved to amend its statement of claim after the expiry of the limitation period to add its parent corporation as a plaintiff, arguing misnomer.

The Master and Divisional Court dismissed the motion, finding it was an attempt to add a new party rather than correct a misnomer.

The Court of Appeal upheld the decision, confirming it was not a misnomer and reaffirming that the special circumstances doctrine did not survive the enactment of the Limitations Act, 2002.

The appellant, a former director who paid the company's outstanding GST and payroll remittances, appealed the dismissal of his claim for contribution from the respondents, whom he alleged were also directors.

The Court of Appeal held that the trial judge erred by independently determining the respondents' tax liability instead of deferring to the Canada Revenue Agency's assessments.

However, applying the correct approach, the appeal was dismissed because the CRA had determined that neither respondent was liable for the tax.

The appellant's alternative claim for unjust enrichment also failed as the respondents received no benefit.