Sean Zeitz

The appellant bank appealed the dismissal of its civil fraud claim arising from a corporate loan application supported by an allegedly false personal financial statement.

The court held that the application judge correctly applied the elements of civil fraud, including the recklessness branch, and was entitled to find that the respondent neither prepared nor signed the impugned financial statement and reasonably believed the financing was for a legitimate business.

The court further held that the bank’s own evidence established reliance only on the false personal financial statement, not on other alleged misrepresentations in the broader loan application.

No palpable and overriding error or inadequacy of reasons was shown, and the appeal was dismissed with costs.

In a complex, combined family and civil proceeding, the husband brought motions to further amend his pleadings and compel third-party financial disclosure shortly before a rescheduled trial.

The court dismissed the majority of the requested amendments, finding them to be an attempt to retool his narrative and expand the issues on the eve of trial.

The court ordered the third parties to file an affidavit regarding the availability of the requested records but relieved them from the balance of the summons.

Finally, the court ordered the wife to pay $40,000 in costs thrown away for a previously adjourned trial date.

The plaintiff bank moved for default judgment against the defendants for civil fraud in obtaining small business loans.

The individual defendant submitted a fictitious invoice for equipment that was never purchased and transferred the loan proceeds to various numbered companies.

Shortly after the bank began investigating, the defendant transferred his interest in his home to his spouse for no consideration.

The court found the defendant liable for fraudulent misrepresentation, awarded the outstanding loan amount plus $150,000 in punitive damages, and voided the property transfer as a fraudulent conveyance.

The plaintiff brought an urgent motion for a Certificate of Pending Litigation (CPL) against a residential property after the defendant vendor failed to close the transaction due to an inability to discharge two mortgages.

The mortgages were subsequently assigned to a third party who opposed the CPL and sought to sell the property under power of sale.

The court found that while the plaintiff established a triable issue regarding an interest in land, the balance of equities under the Dhunna factors did not favour granting the CPL.

The plaintiff failed to prove the property was unique, damages were an adequate remedy, and the third-party mortgagee would suffer greater prejudice if the CPL were granted.

The applicant's former lawyer brought a motion in family court for a charging order against a property for unpaid legal fees of approximately $664,323.

The property had been transferred to the respondent husband pursuant to family law minutes of settlement.

The court held that while the motion should ideally have been brought in the related civil action commenced by the lawyer, the family court had jurisdiction and would decide the motion to save resources.

The court granted the charging order, finding the lawyer was instrumental in preserving equity in the property and that there was a triable issue regarding whether the transfer was a fraudulent conveyance, with quantification to be determined in the civil action.

The applicant father sought to set aside a domestic contract resolving child support and parenting issues, arguing the respondent mother repudiated the agreement through multiple breaches, including interfering with access and violating confidentiality provisions.

The corporate applicant, controlled by the father, also sought to enforce a mortgage on the mother's home.

The court found that while the mother breached certain access and confidentiality terms, her conduct did not amount to a repudiation or fundamental breach of the agreement as a whole.

The court also dismissed the mortgage enforcement action, finding the mother was not in default and was entitled to exercise her option under the agreement to redeem the mortgage.

The applications to set aside the agreement and enforce the mortgage were dismissed.

The applicant corporation, controlled by the respondent's former partner, brought a motion for a mandatory order compelling the respondent to redeem a mortgage on her home prior to an upcoming family law trial.

The court applied the RJR MacDonald test as modified for mandatory orders, finding the applicant failed to establish a strong prima facie case or irreparable harm.

The court dismissed the motion, noting that the validity of the underlying Minutes of Settlement was a central issue for the impending trial, and awarded costs to the respondent.

The applicant brought a motion to compel the respondent to answer undertakings and produce documents, including unredacted files from third-party lenders and a real estate file over which solicitor-client privilege was claimed.

The court found the respondent had not made sufficient efforts to comply with her undertakings and ordered her to write directly to the third parties for unredacted files.

The court also ordered the allegedly privileged emails to be produced for a privilege review process.

Costs of $7,500 were awarded to the applicant.

Following the plaintiff's discontinuance of a fraud action, the defendants brought a motion for full indemnity costs of approximately $65,000 under Rule 23.05.

The court held that the 2009 amendment to Rule 23.05 removed the presumptive entitlement to costs, requiring the court to exercise its general discretion.

Finding that the plaintiff had some justification for commencing the action but ultimately discontinued it for economic reasons, the court awarded the defendants partial indemnity costs.

However, because the defendants unreasonably rejected a without-costs dismissal offer and countered with an inflated costs demand, the court limited their costs recovery to those incurred prior to the plaintiff's offer, fixing the award at $22,800.

The debtor brought an application for court approval of its proposal under the Bankruptcy and Insolvency Act.

Two secured creditors opposed the proposal because it contained a clause releasing the debtor's principal from his personal guarantees.

The court refused to approve the proposal, finding that the release of the guarantor was not necessary for the restructuring and did not benefit the general body of creditors.

The court also found that the proposal lacked good faith as the release clause was not prominently disclosed.