Shervin Rismani

The applicant, the Ontario Securities Commission, sought an order under section 129 of the Securities Act to appoint a receiver and manager over all assets and properties of the respondents, a group of interconnected real estate investment entities.

The Commission alleged that the respondents diverted investor equity from specific limited partnership projects to unrelated properties, contrary to the limited partnership agreements and marketing materials.

The court rejected the respondents' argument that a strong prima facie case was required, holding that the Commission only needed to show serious concerns of a breach.

Although the court ruled that investor interview transcripts were hearsay and inadmissible for the truth of their contents, it found sufficient evidence of improper fund diversion to justify the receivership.

The court appointed the receiver over all properties, declining to exempt specific properties held by secured creditors, to ensure coordinated oversight.

This is a costs endorsement following a successful summary judgment motion by the defendants, which dismissed the plaintiffs' action in its entirety.

The court considered the defendants' requests for partial indemnity costs and the plaintiffs' financial hardship.

Exercising its discretion under section 131 of the Courts of Justice Act, the court reduced the costs payable by the plaintiffs, ordering them to pay $15,000 to one defendant and $15,000 to the corporate defendants, inclusive of all fees, disbursements, and HST.

The defendants moved for summary judgment to dismiss the plaintiffs' action, which alleged solicitor's negligence against one defendant and sought damages against the other defendants (former mortgagee).

The court found the action time-barred under the Limitations Act, 2002, as it was commenced more than two years after the plaintiffs were aware of their claims.

Furthermore, the court found no evidence of solicitor's negligence or a valid cause of action against the mortgagee, concluding that the plaintiffs' financial hardships were a consequence of their mortgage default and the new lender's risk assessment, not the defendants' fault.

The action was dismissed.

The defendants moved to dismiss the action for delay under Rule 24.01 of the Rules of Civil Procedure.

The plaintiffs argued that the defendants were not entitled to bring the motion due to non-compliance with discovery plan obligations, that the delay was not inordinate, and that there was a reasonable explanation for the delay (conflict of interest with previous counsel, health issues of a key principal, COVID-19 pandemic, and a complex property sale).

The plaintiffs also argued that the defendants failed to demonstrate actual prejudice.

The court found that the 1 year and 9 months delay was not inordinate, and that the combined explanations for the delay were reasonable and cogent.

Furthermore, the defendants failed to prove actual prejudice that would prevent a fair trial.

Consequently, the motion to dismiss was dismissed, and no costs were awarded due to the plaintiffs' inaction necessitating the motion.