Scott Turton

The moving parties brought a motion to quash the responding parties' appeal of a Superior Court order confirming an assessment officer's certificate.

The assessment officer had reduced the responding parties' legal accounts, resulting in a further payment of $25,546.14 required from the moving parties.

The Court of Appeal held that the appeal route for a solicitor and client costs assessment is determined by the amount of the single payment ordered by the Superior Court judge.

Because the single payment ordered was less than $50,000, the appeal lay to the Divisional Court.

The motion to quash was allowed and the appeal was transferred to the Divisional Court.

The plaintiff, Business Development Bank of Canada (BDC), brought a debt collection action against Winston Ang in Halton Region.

The court found no logical connection to Halton Region and, following the precedent in The Toronto-Dominion Bank v. The Other End Inc. et al., 2025 ONSC 85, ordered the matter transferred to Toronto Region.

The motion for summary judgment was adjourned sine die, and a related 2023 action against Mr. Ang was dismissed without costs and without prejudice.

The plaintiff, a second mortgagee, sought a declaration that an amended first mortgage held by the defendant was unenforceable against it due to alleged fraud.

The plaintiff claimed the defendant concealed increased interest rates and a U.S. dollar conversion clause when it took assignment of the first mortgage.

The court found the plaintiff failed to prove the elements of civil fraud or that the defendant wrongfully concealed the terms.

The plaintiff's claims were dismissed, and the amended first mortgage was held to maintain priority.

This endorsement addresses two motions: the Trustee in Bankruptcy's motion to transfer and consolidate a foreclosure action (or parts thereof) from Hamilton to the Commercial List in Toronto with a transfer at undervalue (TUV) motion in the bankruptcy proceeding, and a cross-motion by the Cardillo Respondents to transfer the entire bankruptcy proceeding to Hamilton.

The core dispute, the "250 Mortgage Dispute" concerns the validity and priority of a first mortgage assignment and tacking of subsequent mortgages on the bankrupt's primary asset.

The court found compelling reasons for a common determination of the 250 Mortgage Dispute due to interwoven issues and potential for inconsistent findings.

The cross-motion to transfer the bankruptcy to Hamilton was dismissed, as the Toronto proceeding was well advanced and the request was deemed a delay tactic.

Instead of a full transfer or consolidation, the court ordered a trial of the 250 Mortgage Dispute as an issue within the Toronto bankruptcy proceeding under s. 187(8) of the BIA, granting full party participation rights to the Mortgagee Defendants and staying the relevant part of the Foreclosure Action in Hamilton.

Costs were awarded against the Cardillo Respondents.

This is a costs ruling following the dismissal of a motion by Medcap Real Estate Holdings Inc. to dismiss or stay multiple actions brought by Bennington Financial Corp. Medcap had argued that Bennington failed to disclose a settlement agreement that altered the litigation landscape.

The court previously found no disclosure requirement and dismissed Medcap's motion.

In this costs decision, Bennington sought substantial indemnity costs, arguing the motion was complex and an attack on its counsel.

The court awarded partial indemnity costs, finding Medcap's conduct did not warrant sanction.

The court also addressed the assessment of costs for in-house counsel, adjusting Bennington's claimed hourly rates to reflect a reasonable partial indemnity rate.

The defendant, Medcap Real Estate Holdings Inc., brought motions to dismiss or stay actions by Bennington Financial Corp. and Heffner Investments Limited.

Medcap alleged that the plaintiffs, along with other non-parties, entered into an undisclosed agreement to only settle collectively, which Medcap argued constituted an abuse of process requiring immediate disclosure.

The court found that such a verbal "settle with one, settle with all" agreement existed.

However, the court determined that this agreement was not required to be disclosed because it did not "entirely change the landscape of the litigation in a way that significantly altered the adversarial relationship among the parties or the dynamics of the litigation" as the plaintiffs were already aligned in interest through prior agreements and conduct.

Consequently, Medcap's motions were dismissed.

The Applicant sought to amend its Fresh As Amended Statement of Claim in a trial of an issue concerning fraud allegations related to a prior summary judgment.

The court granted leave to amend for clerical errors and some factual expansions, but denied the bulk of the proposed amendments, including new causes of action and irrelevant/evidentiary allegations, finding them beyond the scope of the directed trial of an issue and that the delay caused presumptive prejudice.

The applicant sought to re-open a prior decision regarding mortgage priorities to raise a new legal argument under s. 93(4) of the Land Titles Act, which it had neglected to raise at the original hearing.

The court had previously determined the priority issue but reserved jurisdiction solely for a trial on allegations of fraud.

The court dismissed the applicant's request, holding that allowing a new legal argument on an issue already determined would offend the public policy goal of finality and the doctrine of functus officio.

The appellant, Ayerswood Development Corporation, appealed a Superior Court order directing that funds paid to Sirius Concrete Inc. shortly before its bankruptcy formed part of the bankrupt estate.

Ayerswood argued the funds were subject to a constructive trust due to Sirius's deceit and unjust enrichment.

The Court of Appeal found the bankruptcy judge erred in summarily dismissing the constructive trust claim, holding that Ayerswood's uncontradicted evidence, if true, could legally support such a trust.

The appeal was allowed, and the matter remitted for a proper determination of entitlement to the funds.

This case involves a motion to quash an appeal in a mortgage priorities dispute.

The appellant, a second mortgagee, sought to appeal an application judge's determination regarding the enforceability and priority of charges under the first mortgage.

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

The Court of Appeal agreed that the order was interlocutory because the "very subject matter" of the litigation, specifically the enforceability and priority of the mortgage, had not been finally determined, as a trial of an issue regarding fraud was still pending.

Consequently, the appeal was quashed.

The respondent brought a motion seeking payment into court by the applicant for accrued and future interest under the Mortgages Act and for security for costs under Rule 56.01(1)(d).

The applicant opposed, arguing the initial consent order for payment into court was sufficient and that security for costs was unwarranted.

The court found the applicant's financial disclosure insufficient to rebut the presumption for security for costs and ordered the applicant to pay an additional sum for interest shortfall and a sum for security for costs into court.

The applicant second mortgagee sought a determination of the legitimacy and priority of certain charges and an increased interest rate claimed by the respondent first mortgagee under a renewed first mortgage.

The court held that the disputed charges and the increased interest rate were enforceable and held priority over the second mortgage, as the second mortgagee was deemed to have notice of the standard charge terms permitting such increases.

However, the court adjourned the final allocation of funds to a trial of an issue to address the applicant's late allegations of fraud.

The respondent commenced an action against the appellants arising from mortgage investments.

After the appellants were noted in default and failed to appear on a motion for judgment, default judgment was granted in excess of $800,000.

The motion judge dismissed the appellants' motion to set aside the default judgment.

On appeal, the appellants challenged the motion judge's analysis on all grounds.

The Court of Appeal upheld the motion judge's decision, finding that the appellants failed to establish an arguable defence on the merits and that there was no evidence of prejudice beyond the axiomatic prejudice of having a judgment entered against them.

The court also noted that the appellants' allegation of reasonable apprehension of bias was recklessly made without evidentiary support.

The parties settled the appeal before the Court of Appeal for Ontario.

The appeal was dismissed with costs payable by the appellants in the all-inclusive sum of $6,500.

Hazelton Homes Corporation, a non-party, brought a motion for leave to intervene and to set aside orders granting the plaintiffs leave to issue writs of possession for two properties.

Hazelton alleged the defendant held the properties in trust for it, while the defendant claimed the trust agreements were forged.

The plaintiffs and the first mortgagee held mortgages in default.

The court found Hazelton was not a mortgagor under section 23 of the Mortgages Act but granted an interim order allowing Hazelton to intervene and stayed the enforcement of the writs of possession, conditional upon Hazelton paying all mortgage arrears, ongoing interest, and costs on a substantial indemnity basis.

The appellants appealed an order from the Superior Court of Justice regarding an assessment of legal costs.

The appellants challenged the admission of business records (dockets and accounts) at the assessment hearing and argued that the assessment officer erred in limiting cross-examination on the clerk's dockets.

The Court of Appeal found that the appellants' counsel had conceded the admissibility of the business records and that the assessment officer properly limited cross-examination to the clerk's entries rather than the work performed by the firm.

The appellants were permitted to challenge the work carried out and the assessment officer substantially discounted the clerk's time.

The appeal was dismissed with costs awarded to the respondent.

The plaintiff, Cornerstone Properties Inc., sued Southside Construction Management Ltd. seeking to pierce its corporate veil to satisfy approximately $53,500 in costs orders.

These costs were awarded against 2108790 Ontario Inc. (2108), a company beneficially owned by Southside, in a prior action.

Cornerstone alleged that 2108 was a "mere puppet" created by Southside for a fraudulent or improper purpose to acquire land and avoid liability for costs.

The court applied the Transamerica test for piercing the corporate veil, which requires complete control of the subsidiary and its incorporation for a fraudulent or improper purpose or use as a shell for improper activity.

The court found that 2108's formation to acquire the Urlindale lands was for a lawful purpose, and there was no evidence of fraudulent or improper conduct.

The court also determined it lacked jurisdiction to make a standalone costs order against Southside as a non-party to the original action.

The action was dismissed.

The plaintiffs brought a motion to continue an interim Mareva injunction, a Norwich Order, and certificates of pending litigation against the defendants, alleging they were victims of a multi-million dollar mortgage fraud orchestrated by their former lawyer and acquaintances to pay off the ex-husband's gambling debts.

The defendants cross-moved to vacate the orders and enforce the plaintiffs' undertaking as to damages.

The court found the plaintiffs failed to establish a strong prima facie case of fraud, noting their evidence was implausible and that they failed to make full and fair disclosure when obtaining the ex parte orders.

The court vacated the injunctions and orders but dismissed the defendants' motion to enforce the undertaking as to damages, finding it premature as the underlying claims of professional negligence and fraud remained to be determined at trial.

This application and cross-application sought to determine the meaning of a clause in a lay-person drafted "Commercial House Lease Agreement" concerning a tenant's "5 years priority to rent the property." The Applicant, Merly Maria Castillo, argued this constituted an option to renew, while the Respondents, Salvatore and Anna Cancelli, contended it was merely a right of first refusal.

Applying principles of contractual interpretation, the court found the clause granted the tenant an option to renew the lease for an additional five-year period, emphasizing the need to give meaning to all terms and avoid commercial absurdity.

The appellant appealed the property assessments for a 28-unit townhouse development for the 2007, 2008, 2013, and 2014 taxation years.

The property was affected by a failing gabion wall along an adjacent creek, which required significant remediation.

The appellant argued for a nominal property value, citing the cost to cure, litigation risks, and entrepreneurial profit.

The Assessment Review Board rejected the appellant's appraisal evidence as unreliable and outside the expert's scope.

Instead, the Board accepted MPAC's income approach valuation and the City's engineering estimates for the cost to cure.

The Board reduced the assessed values by the subject property's apportioned share of the estimated remediation costs, resulting in a reduction of the current value for all appealed taxation years.