Tamara Sugunasiri

Following the dismissal of a motion for partial default judgment and partial summary judgment, the court considered the appropriate costs award.

The defendant Crown sought substantial indemnity costs including significant expert disbursements.

The court reviewed the general principles governing costs under Rule 57 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act.

It concluded that the moving party's evidence supporting an alleged equitable mortgage was deficient and unreasonable in the context of the summary judgment motion.

Substantial indemnity costs and expert disbursements were awarded to the Crown.

The moving party sought partial summary judgment and default judgment declaring an equitable mortgage or equitable interest over two Ottawa properties, asserting priority over liens registered by the Canada Revenue Agency for tax debts of one of the defendants.

The claim relied primarily on a written agreement and the alleged use of funds provided by the moving party in property transactions.

The court held that the agreement did not establish the essential elements of an equitable mortgage, including a clearly defined debt and intention to charge specific property as security.

Significant disputes existed regarding the source of funds and the parties’ intentions, raising credibility issues.

The court concluded that these issues required viva voce evidence at trial and dismissed the motion for summary judgment.

The Canada Revenue Agency (CRA) obtained a jeopardy order under the Income Tax Act to collect a tax debt from a corporation on the eve of its receivership.

The CRA garnished funds from the corporation's bank account.

The corporation was subsequently declared bankrupt.

The trustee in bankruptcy brought a motion seeking the return of the garnished funds, arguing the jeopardy order conflicted with the priority scheme in the Bankruptcy and Insolvency Act (BIA).

The Court of Appeal dismissed the trustee's appeal, holding that the motion was an impermissible collateral attack on the Federal Court's jeopardy order.

Furthermore, the garnishment was a completely executed process prior to bankruptcy under s. 70(1) of the BIA, and the CRA's actions did not constitute an improper Crown priority or inequitable conduct.