Tyler H. McLean

This is a foreclosure action on a mortgage originally given in 1993 by 830990 Ontario Ltd. to 823042 Ontario Inc., allegedly assumed by 1305268 Ontario Inc. in 2006.

The plaintiff claimed the mortgage went into default in 2011 and sought foreclosure for over $2.5 million in unpaid interest.

The defendant argued the entire claim was a fraud orchestrated by Kenneth James, a disgruntled shareholder.

The court found that the plaintiff's principal witnesses, Marco Lorenti and Kenneth James, were not credible.

The court determined that the mortgage was never renewed or validly transferred to the plaintiff, that the renewal letters and transfer document were forged, and that the plaintiff was not the valid holder of the mortgage.

The action was dismissed.

Additionally, the court found the claim was statute-barred under the Real Property Limitations Act.

An applicant sought a declaration that properties and bank accounts held jointly with a family member were subject to a resulting trust, not a gift.

This application was brought to protect assets from a judgment creditor, which had obtained a fraud judgment against the family member.

The court addressed two preliminary issues: whether the transfer was a gift or created a resulting trust (requiring a trial), and whether the family member's registration on title necessarily gave them a beneficial interest enforceable by the creditor.

The court dismissed the creditor's argument that land titles registration was conclusive for third-party creditors, distinguishing it from conveyancing cases involving bona fide purchasers.

The court found that the indefeasibility principle of the Land Titles system does not apply to third-party creditors in this context, and therefore, a trial is necessary to determine the true beneficial ownership.

The plaintiffs brought a motion to strike paragraphs 40 and 59 of the defendants’ statement of defence and counterclaim, arguing they pleaded privileged settlement discussions or evidence.

The defendants had offered to reverse an asset purchase "with prejudice" as a mitigation argument.

The court found that despite being marked "with prejudice," the offer was a privileged settlement proposal intended to end the litigation.

The motion to strike was granted, with leave to amend, allowing the defendants to plead failure to mitigate without reference to the specific offer.

Costs were awarded to the plaintiffs.

The defendants, Julia Fraser and James Lewis, brought a motion for an interlocutory order for possession of a custom-built houseboat, which was the subject of a contract dispute with the plaintiff, 2834277 Ontario Inc. The defendants had paid 70% of the contract price and were registered owners, but the plaintiff was unlawfully detaining the vessel.

The court granted the motion, finding that the defendants met the requirements under section 104 of the Courts of Justice Act and Rule 44.01 of the Rules of Civil Procedure, and that the balance of convenience favoured granting possession to the defendants.

This costs endorsement followed an appeal where the damages awarded to the respondents were significantly reduced from $975,000 to $45,000.

The Court of Appeal determined the prejudgment interest and costs for both the trial and the appeal.

The respondents' claim for prejudgment interest was recalculated based on the reduced damages.

Their original substantial indemnity costs award for trial was reduced from $136,971.02 to $75,000, though still granted on a substantial indemnity basis due to the appellants' egregious conduct during litigation.

The appellants were awarded $15,000 in partial indemnity costs for the appeal, which were deducted from the respondents' trial costs.

The plaintiff, A.J. Lanzarotta Wholesale Fruits & Vegetables Ltd., sought judgment against the defendants (United Farmers, 2773125 Ontario Inc., Janet Michelle Brunton, and Wayne D. King) in an uncontested trial after their statement of defence was struck.

The action was grounded in fraudulent misrepresentation and deceit related to the defendants' scheme to obtain large quantities of food products on credit.

The court found the defendants liable for civil fraud, pierced the corporate veil to hold the individual defendants personally liable, and awarded compensatory damages for the cost of goods sold and various consequential losses, but not lost profits.

Punitive damages were also awarded against the individual defendants, and the judgment was declared to survive bankruptcy.

This is an appeal from a judgment concerning a failed real estate transaction.

The trial judge found the appellants breached the agreement of purchase and sale, struck their statement of defence due to a lack of standing for their representative (daughter acting in person), and awarded $1 million in damages.

The Court of Appeal allowed the appeal in part, finding the trial judge erred in striking the statement of defence (though it did not affect the outcome on the merits) and, crucially, erred in the assessment of damages.

The Court clarified the proper measure of damages for breach of an agreement of purchase and sale and reduced the damages awarded to $45,000.

The court also confirmed the appellants failed to meet their onus to prove the respondents failed to mitigate damages.

The Bank of Nova Scotia ("BNS") sought summary judgment against former spouses Danilo Milosevic and Dusica Grabovica for a joint line of credit debt.

The court found no genuine issue requiring a trial regarding Mr. Milosevic's liability for the debt itself, affirming joint and several liability.

However, a genuine issue was found regarding the precise accounting of the debt, specifically the applicable interest rate and calculation of accrued interest, which was ordered to proceed to a trial of the issue.

Ms. Grabovica's liability was already set for a mini-trial concerning her signature's authenticity.

Costs were reserved to the trial judge.

The Plaintiff, A.J. Lanzarotta Wholesale Fruits & Vegetables Ltd., brought an urgent motion for a Mareva injunction and a Norwich Order against the Defendants, United Farmers, 2773125 Ontario Inc., Janet Michelle Brunton, and Wayne D. King.

The Plaintiff alleged fraudulent misrepresentation by the Defendants regarding government contracts and ownership of a plane, leading to a $1.7 million debt for produce.

The court found that the Plaintiff made proper disclosure and established a strong prima facie case of fraudulent misrepresentation, as well as a real risk of asset dissipation by the Defendants.

The court also determined that the injunction should cover all property, whether solely or jointly held by Brunton, as beneficial ownership was a triable issue.

The Mareva injunction was continued.

The Court of Appeal for Ontario allowed an appeal concerning an award of punitive damages.

The motion judge had awarded $50,000 in punitive damages without providing any analysis or reasons for the award.

The appellate court found that this lack of analysis rendered the decision unreviewable, concluding that punitive damages are an exceptional remedy requiring proper justification.

Consequently, the appeal was allowed, and the punitive damages award was set aside.

Following a motion to strike portions of an amended counterclaim where the moving party achieved mixed but overall greater success, the parties made written submissions on costs.

The moving party sought $7,784.53 on a partial indemnity basis, while the responding party argued for no costs or costs in the cause.

The court found the moving party's claimed fees excessive given the motion's lack of complexity and short duration.

Costs were fixed at $4,235 inclusive of disbursements and HST, payable by the responding party within 30 days.

This motion concerned an application to strike portions of an amended counterclaim pursuant to Rules 21 and 25 of the Rules of Civil Procedure.

The moving party sought to strike paragraphs alleging punitive damages, narrative context, and various torts, arguing no reasonable cause of action was disclosed, or that the pleading was frivolous, vexatious, or pleaded evidence.

The court granted the motion in part, striking several paragraphs for failing to concisely plead material facts or for ambiguity regarding the causes of action, with leave to amend.

Claims for punitive damages and certain allegations related to abuse of process were allowed to stand.

An extension of time to file a statement of defence was also granted.

The appellant sought leave to amend his statement of claim to add claims based on alleged shareholder status and conversion of shares, after his original claims based on a promissory note had been found statute-barred.

The motion judge dismissed the motion for leave to amend on two grounds: (1) the proposed amendments raised causes of action that were statute-barred under the Limitations Act, 2002, and (2) the motion constituted an abuse of process.

The Court of Appeal upheld the dismissal, finding that the appellant had discovered his possible claim as a shareholder by December 2, 2013, when he first sought to amend to plead oppression relief, and therefore the two-year limitation period had expired before he moved to amend in October 2016.

The court also upheld the substantial indemnity costs award of $100,000.

The plaintiff moved for a third time for leave to amend his statement of claim, seeking declarations regarding share ownership, civil fraud, and oppression, after his initial claim on a promissory note was found to be statute-barred.

The court denied the motion, finding that the proposed amendments effectively sought consequential relief and were therefore subject to the expired two-year limitation period.

Furthermore, the court held the motion was an abuse of process and res judicata, as a similar motion had been dismissed in 2013.

The applicant, Sheila Di Florio, sought to claim contribution from her brothers-in-law, Tony and Frank Di Florio, for a joint and several judgment debt she alleged to have satisfied on behalf of her separated spouse, Sandy Di Florio, who had declared bankruptcy.

The court dismissed the application, finding that Sheila failed to provide evidence that she personally made any payment towards the debt.

Furthermore, the court held that any right of contribution arising from payments made by or on behalf of Sandy's bankrupt estate vested solely in Sandy's trustee in bankruptcy, not in Sandy personally after his bankruptcy, and therefore could not be assigned to Sheila.

The plaintiff moved for summary judgment to recover funds allegedly loaned or invested in the defendant corporation and evidenced by promissory notes.

The defendant opposed the motion and sought summary judgment dismissing the claim on the basis that it was statute‑barred.

The court held that the limitation period under the Limitations Act expired in February 2008 following a demand for payment in 2006 and that no valid acknowledgment occurred before the expiry of the limitation period.

A purported later promissory note relied upon by the plaintiff was found to be a forgery and therefore could not revive the claim or constitute an acknowledgment of debt.

The plaintiff’s claim, whether framed as enforcement of the promissory notes or as a loan, was statute‑barred and equitable relief was unavailable due to the plaintiff’s lack of clean hands.

Following the dismissal of a motion to amend a statement of claim to add an oppression claim under s.248 of the Business Corporations Act, the successful defendant sought costs of the motion.

The defendant requested partial indemnity costs based on 50.4 hours of counsel time.

The court found the claimed hours excessive for a routine motion that took less than half a day and concluded that 20 hours would have been reasonable at the claimed hourly rate under Rule 57.01 of the Rules of Civil Procedure.

However, considering the broader circumstances of the dispute, including that the defendant retained $500,000 advanced by the plaintiff while denying liability, the court exercised its discretion to decline awarding costs.

No costs were ordered.

The plaintiff brought a motion for leave to amend his Statement of Claim to add personal defendants and an alternative claim for an oppression remedy.

The original claim was based on a promissory note, which the defendant alleged was a forgery.

The court dismissed the motion, finding that the original pleading contained no facts to support an oppression remedy, and the proposed amendment constituted a new cause of action for which the limitation period had expired.