Tarunjeet Gujral

The Bank of Montreal (BMO) brought a motion for summary judgment against 9310088 Canada Inc. (the Company) and its guarantors, Leonardo Mauro and Tatjana Djukovic-Mauro, for outstanding loan amounts.

The Company defaulted on its loan obligations due to a landlord lockout and cessation of business operations.

The defendants argued that BMO failed to withdraw monthly payments, was contractually required to sell assets before demanding payment from guarantors, acted negligently, breached a duty of good faith, and that the doctrine of non est factum applied.

The court found the Company was in default, BMO was not required to realize on assets first, BMO did not act negligently or in bad faith, and the non est factum defence was inapplicable.

Summary judgment was granted in favour of BMO for the full outstanding amounts against the Company and the limited guarantee amount against the individual guarantors, along with pre and post-judgment interest and costs.

The plaintiff, Old Republic Insurance Company of Canada, initially sued the defendants for $60,000 under simplified procedure and noted them in default.

The plaintiff subsequently moved for default judgment and to amend its Statement of Claim to increase the claim to $200,000.

Upon being served with the motion to amend, the defendants brought a cross-motion to set aside the noting of default.

The court granted both motions, allowing the plaintiff to amend its claim to the higher amount and setting aside the default, thereby permitting the defendants to defend the action on its merits.

The Saskatchewan Cricket Association (SCA) sought judicial review of an arbitration award concerning several grounds, including factual findings, solicitor-client privilege, admission of hearsay evidence, public policy considerations, and the awarding of costs.

The court dismissed the application, finding the arbitrator's factual determinations reasonable, the preclusion of counsel as a witness due to solicitor-client privilege correct, the admission of evidence for its effect (not truth) not hearsay, and no relevant public policy issues.

The court also upheld the arbitrator's costs order as reasonable under the Canadian Sport Dispute Resolution Code.

The applicant sought judicial review of an arbitrator's decision, challenging the arbitrator's failure to award costs on a substantial indemnity basis and disputing the Ontario Superior Court's jurisdiction.

The court dismissed the application, finding the arbitrator's costs decision reasonable, particularly given the terms of the Canadian Sport Dispute Resolution Code and the applicant's conduct.

The court also affirmed Ontario's jurisdiction, consistent with a prior ruling.

Following an order setting aside a default judgment, the court determined the costs thrown away payable to the plaintiff and the costs of the motion payable to the defendant.

The plaintiff was awarded $16,500 in costs thrown away on a substantial indemnity basis, after reductions for unrelated enforcement proceedings and a recoverable sheriff's fee.

The defendant was awarded $3,500 in costs for the motion on a partial indemnity basis, as the court found the defendant's settlement offer did not trigger Rule 49 consequences and success was somewhat divided.

The defendant moved to set aside a default judgment for $117,383.19, which also declared a property transfer void under the Fraudulent Conveyances Act.

The court applied the five-factor test for setting aside default judgments.

While the defendant's promptness in bringing the motion and explanation for default were found to be weak, the court determined that the defendant presented an arguable defence with an "air of reality" regarding the conspiracy and fraudulent conveyance claims.

Specifically, the court noted the difficulty in establishing joint and several liability for the underlying debt based solely on a fraudulent conveyance and the non-monetary nature of remedies under the Fraudulent Conveyances Act.

The motion was granted on terms, including a restriction on dealing with a specific property and an order for costs thrown away.