Terry Walman

The defendants/plaintiffs by counterclaim (the "Soods") brought a motion for an interim injunction to prevent Celernus Investment Partners Inc. ("Celernus") from continuing power of sale proceedings on properties secured by a defaulted mortgage.

The Soods alleged breach of contract and breach of the duty of honest contractual performance by Celernus in their counterclaim.

The court applied the three-part RJR-MacDonald test for injunctions.

It found no serious question to be tried regarding Celernus's enforcement rights, determined that any potential loss to the Soods would be quantifiable in damages and thus not irreparable harm, and concluded that the balance of convenience favoured upholding the lender's contractual rights.

The motion for an interim injunction was dismissed, though a 60-day extension was granted to the Soods to arrange alternate financing.

The applicant vendor sought an urgent order at a case conference to compel a real estate broker to release a $740,000 deposit to facilitate the closing of a real estate transaction, despite the broker's claim to a commission trust.

The court declined to make the order as the broker had not been formally served and the trust issues required further consideration.

The court also ordered the second mortgagee to discharge its mortgage upon payment of the undisputed amount and payment into court of $97,000 to secure disputed fees, interest, and costs.

The appellants, Celine and Richard Pizale, sought to appeal orders approving the sale of their partially-renovated property by a receiver and an administration order.

They argued they had an automatic right of appeal under s. 193(c) of the Bankruptcy and Insolvency Act (BIA) or, alternatively, should be granted leave to appeal under s. 193(e).

The Court of Appeal dismissed their panel review motion, affirming the chambers judge's decision that no automatic right of appeal existed as the sale approval order did not result in a loss beyond that already worked by the unappealed appointment order.

The court also found no basis to grant leave to appeal, concluding that the appeal did not raise an issue of general importance or prima facie merit, and would hinder the receivership process.

Following a successful summary judgment motion by the plaintiff, the parties submitted written costs submissions.

The defendants argued that each party should bear its own costs because the plaintiff's success did not exceed a settlement offer.

The court rejected this argument, noting the outcome was substantially in the plaintiff's favour and the relief was only modified to minimize prejudice to the defendants.

The court awarded the plaintiff costs of $12,000 plus HST on a substantial indemnity basis due to delays caused by the defendants.

The plaintiff mortgagee brought a motion for summary judgment to take possession of mortgaged properties after the defendants defaulted on payments.

The defendant mortgagor opposed the motion, arguing the mortgage was unenforceable because he did not receive independent legal advice before signing.

The court granted summary judgment, finding no genuine issue for trial as the defendant was of sound mind, there was no evidence of undue influence or fraud, and the lack of independent legal advice did not vitiate consent.

The court ordered the properties to be sold by power of sale, but permitted the defendant to remain in the residence until June 1, 2018.