Stephen Schwartz

The Applicants brought a motion seeking an accounting of loans and a determination regarding the collateral nature of a $650,000 mortgage (the "Castlemore Mortgage") against 4415 Castlemore Road, Brampton, in relation to a $700,000 mortgage (the "Wilson Mortgage") against 1031 Wilson Avenue, Toronto.

While the accounting issue was resolved, the central dispute concerned whether the Castlemore Mortgage was collateral to the Wilson Mortgage, and if an amendment deleting the collateral provision was valid.

The court found that the Castlemore Mortgage was not collateral security for the Wilson Mortgage due to a valid amendment registered in April 2015, and that the Respondent Graff was entitled to rely on this amendment, despite the Applicants' claims of lack of authority by the bare trustee.

The Applicants' motion was dismissed.

The appellant appealed an order of the Superior Court of Justice dated October 13, 2015.

The Court of Appeal found that the judge below articulated the correct legal principles and made findings of fact and mixed fact and law that were fully supported by the record.

The court was not persuaded by the appellant's arguments and dismissed the appeal.

The respondent was awarded costs in the amount of $9,000, to be deducted from the appellant's entitlement to funds held in trust by respondent's counsel.

The applicants commenced an application seeking a compulsory purchase of their shares or winding up of the companies, along with an initial motion for an interim receiver.

After receiving financial disclosure, the applicants abandoned the initial motion and brought an amended motion for an inspector, which they later also abandoned in favour of different relief.

The respondents sought costs thrown away for the abandoned initial motion and costs for the amended motion.

The court awarded the respondents costs thrown away 'on account' and costs of the amended motion on a partial indemnity basis, noting the applicants' approach of seeking draconian relief only to abandon it caused unnecessary legal work.

The appellant electrical contractor appealed trial judgments finding it breached sub-contracts for integrated security systems at two correctional facilities by refusing to perform disputed wiring and termination work.

The Court of Appeal upheld the trial judge's findings on the scope of work and mitigation of damages, dismissing the corporate appellant's appeals.

However, the Court allowed the individual appellant's appeal, setting aside his personal liability for breach of trust under s. 13(1) of the Construction Lien Act, finding insufficient evidence that he assented to or acquiesced in conduct amounting to a breach of trust.

The applicant law firm, Morse Shannon LLP, sought charging orders against any amounts recovered by the plaintiffs in two personal injury actions (Hughes and Nasir) where it had acted as agent counsel for the respondent solicitor, Fancy Barristers P.C. and Hassan A. Fancy.

The agency agreements were terminated, and the applicant's accounts for fees and disbursements remained unpaid.

The court granted the charging orders, finding that the applicant's work was instrumental in recovering or preserving the clients' property and that there was sufficient evidence that the accounts would not be paid.

The court also addressed the respondent's irrelevant allegations of misconduct and awarded costs to the applicant.

The appellant applied for an order requiring consumer reporting agencies to remove debts over two years old from his credit report, arguing that the two-year limitation period under the Limitations Act, 2002 should apply.

The application judge dismissed the application.

The Court of Appeal upheld the dismissal, finding that the Limitations Act does not apply to the Consumer Reporting Act.

The passing of a limitation period precludes court enforcement but does not extinguish a debt, and the reporting of such debts is expressly contemplated by the Consumer Reporting Act.

The appellant creditor appealed the dismissal of its application for a bankruptcy order against the respondent debtor.

The appellant argued the application judge erred in her assessment of whether the debtor had ceased to meet his liabilities generally and whether special circumstances existed for a single-creditor bankruptcy.

The Court of Appeal dismissed the appeal, finding the application judge applied the correct standard of proof and her factual findings were reasonably supported by the evidence.

This costs endorsement follows a hybrid trial where the applicants were largely successful against several respondents concerning an invalid power of sale, but unsuccessful against Ginkgo Mortgage Investment Corporation.

The court awarded partial indemnity costs to the applicants against the unsuccessful respondents, with a several order for payment.

The court also fixed partial indemnity costs payable by the applicants to Ginkgo, declining to issue a Sanderson order after applying the two-step test.

The applicants sought declarations that an agreement of purchase and sale entered by the mortgagee during a power of sale process was a nullity and requested authorization to discharge several mortgages by payment into court.

The applicants had requested a mortgage discharge statement under s. 22(2) of the Mortgages Act but the mortgagee failed to provide one within the statutory time.

The court held the request constituted a valid demand for a statement and that the mortgagee lacked a reasonable excuse for non-compliance.

As a result, the mortgagee’s enforcement rights were suspended under s. 22(3), rendering the subsequent agreement of purchase and sale ineffective.

The court further ordered that the mortgages be discharged upon payment of the claimed amount into court pursuant to s. 12 of the Mortgages Act.

The applicant sought an order requiring consumer reporting agencies to remove debts older than two years from his credit report, arguing that once the two‑year limitation period under the Limitations Act, 2002 expires, such debts cannot be legally enforced and should not be reported.

The court considered whether the limitation period governing civil proceedings should apply to the time frame for reporting debts under the Consumer Reporting Act.

The court held that the statutes serve distinct purposes: the Limitations Act governs the enforcement of legal claims, while the Consumer Reporting Act regulates consumer credit reporting.

Because neither statute incorporates the other, the two‑year limitation period does not restrict the reporting of debts under the Consumer Reporting Act.

The applicant’s Charter argument also failed because the actions complained of involved private entities rather than governmental action.

Subsequent mortgagees challenged the validity of a first mortgagee’s power of sale of a Toronto property, alleging they were never served with the required notice and that the notice misstated the amount owing under the mortgage.

The court found the notice of sale had not been served on the subsequent encumbrancers due to a mailing error and that the amount claimed owing was materially overstated through the improper inclusion of pre‑assignment expenses.

As a result, the statutory requirements of the Mortgages Act were not satisfied and the power of sale was invalid.

The purchaser was a bona fide purchaser for value but had actual notice that the validity of the sale was being challenged and therefore could not rely on statutory protections for “professed compliance.” The purchaser and related subsequent mortgagees did not obtain valid title or charges as against the applicants, though the independent first mortgagee lender retained a valid interest.

The appellant condominium corporations sought a declaration that they owned a clubhouse within their development and that a mortgage granted by the respondent developer was void or subordinate to their interests.

The developer had retained legal title to the clubhouse, but the disclosure statements provided for its future conveyance to the appellants once the developer no longer owned any lands in the project.

The Court of Appeal dismissed the appeal, holding that the disclosure statements did not constitute an executory contract of purchase and sale.

Consequently, the appellants did not have an equitable interest in the clubhouse capable of registration under the Land Titles Act, and the developer was entitled to mortgage the property.

The appellant brought a motion asking the panel to reconsider its decision, arguing the panel declined to address an issue.

The Court of Appeal dismissed the motion to reconsider, noting the issue was not part of the directed issue before the trial judge.

The panel did, however, amend one sentence in paragraph 10 of its original endorsement.

Costs of $500 were awarded to the respondent.

The appellant purchased a pre-construction commercial condominium unit and later discovered a large concrete pillar bisecting the glass storefront.

He refused to close and sought rescission, arguing the pillar was an undisclosed material change under the Condominium Act because the draft plans depicted the storefront as a straight line.

The trial judge found no material change, as the straight line did not represent construction materials.

The Court of Appeal upheld the decision, noting the plans were schematic and not intended to provide structural details.

In a standalone costs decision arising from two successful commercial actions by the plaintiff, the court considered whether the defendants' conduct justified full indemnity costs from the inception of the proceedings and what quantum of costs was fair and reasonable.

The court held that although the defendants' conduct, including fabrication and destruction or concealment of documents, was extremely troubling and lengthened the litigation, it did not meet the threshold of reprehensible, scandalous, or outrageous conduct warranting elevated costs from the outset.

Applying Rule 49 and the general principles governing reasonableness, fairness, and proportionality, the court awarded partial indemnity costs to the date of the plaintiff's written offers to settle and substantial indemnity costs thereafter.

The court declined to reduce the amounts claimed and awarded costs of $159,003.92 in one action and $88,125.65 in the other, while also correcting an error in the underlying judgment nunc pro tunc.

The moving defendants sought leave to amend their statement of defence to add a counterclaim, crossclaim, and a third party claim in a mortgage enforcement action brought by trustees for syndicated mortgage investors.

The court held that several proposed amendments attempted to withdraw admissions deemed under a Request to Admit, which could not be done indirectly through amended pleadings.

The court further found that proposed claims for an accounting and set-off were not proper defences to the mortgage claim.

The proposed third party claim relating to an alleged improvident sale of a separate property was unrelated to the main mortgage dispute and appeared designed to delay the proceedings.

Leave to amend the defence and counterclaim and to commence the third party claim was dismissed, but leave to add the crossclaim was granted on an unopposed basis.

A systems integration contractor sued an electrical subcontractor for breach of contract on two correctional facility projects involving integrated security systems.

The dispute concerned the scope of work, including responsibility for supplying and installing wiring and terminating field devices.

The court found the subcontractor breached the contracts by refusing to perform required work and drew an adverse inference due to spoliation of electronic evidence and fabricated quotes.

The subcontractor’s counterclaim for unpaid work was dismissed.

The court also held the company’s principal personally liable for breach of the statutory trust under the Construction Lien Act but declined to declare the debt non‑dischargeable in bankruptcy.

The applicant condominium corporations sought declarations of ownership, breach of trust, and oppression against the developer regarding a community clubhouse.

The developer had retained ownership of the clubhouse, subject to a mortgage, pending the sale of all remaining units and lands in the project, as set out in the disclosure statements.

The court dismissed the application, finding no trust relationship, no breach of the obligation to convey the clubhouse since the condition precedent had not been met, and no oppressive conduct by the developer in its management, mortgaging, or fee-charging for the clubhouse.

The appellants brought a fresh evidence motion as part of their appeal, seeking to introduce affidavits from two rabbis regarding the exact time the Sabbath began on February 19, 1999.

The evidence was intended to undermine the credibility of a respondent who testified that he could not have finalized a lease arrangement on that Friday afternoon due to the approaching Sabbath.

The Court of Appeal dismissed the motion, applying the Palmer test and concluding that even if the evidence were admitted, the minor discrepancy in the estimated time of the Sabbath would not reasonably be expected to have affected the trial judge's findings on credibility or the ultimate result.

The moving defendants sought dismissal of the action on the basis that the parties had reached a binding settlement agreement in May 2007.

The court considered whether the correspondence and negotiations between the parties constituted a legally binding settlement, applying the two-step analysis for determining intention to create legal relations and agreement on essential terms.

The court found the evidence vague and concluded that the parties’ discussions amounted only to an attempt to reach an agreement, with essential terms unresolved.

However, the court held that an earlier unequivocal offer to discontinue the action against one individual defendant personally had been accepted.

The motion was therefore granted only to the extent of discontinuing the claim against that defendant personally, with the remainder of the motion dismissed.