Canada Case Law

Morgan v. Jesani

Court

Supreme Court of British Columbia

Defendant breached express trust obligations by failing to account for mortgage proceeds and commingling funds; plaintiffs entitled to adjusted division of sale proceeds and restitution; defendant failed to prove entitlement to claimed interest and settlement offsets; counterclaims dismissed and distribution of funds ordered as set out by the court.

Source excerpt

• Breach of trust
• Declaration of trust
• Shareholders' agreement
• Accounting for sale proceeds
• Constructive/express trust
• Mortgage financing

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Lu v. Yao

Court

Supreme Court of British Columbia

The court dismissed a father's application to cancel or reduce child and spousal support arrears, and fixed arrears at CAD 576,674.26 after limited offsets.

• Cancellation of arrears
• Variation of support orders
• Jurisdiction under divorce act vs family law act
• Fmep enforcement
• Accounting for sale proceeds
• Credibility and evidence sufficiency

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Nygaard v. Nygaard

Court

Supreme Court of British Columbia

The court dismissed an application to enforce a 1999 consent order over matrimonial property, finding the parties later agreed to a buyout and that $23,000 was paid.

• Enforcement of consent order
• Accounting for sale proceeds
• Transfer and buyout of matrimonial property
• Limitation act transition
• Laches
• Summary disposition

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1758704 Ontario Inc. v. Priest

Court

Court of Appeal for Ontario

The motion judge correctly found the appellant in default on the promissory note and there was no evidence of forbearance; the appellant is nevertheless permitted to litigate the alleged impropriety of the seizure and sale and any resulting set-offs at the return of the injunction application and at the trial of quantum, and therefore the Statement of Defence should not have been struck; the Court of Appeal varied the order to expressly find default and otherwise dismissed the appeal.

Source excerpt

• Promissory note
• General security agreement
• Default
• Forbearance
• Seizure and sale of collateral
• Summary judgment

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Olszewska v. Marzec

Court

Court of Appeal for Ontario

The appeal was dismissed because the appellant's interest was compromised by the July 2002 minutes of settlement and the subsequent unappealed order of Greer J. transferring the property, thereby eliminating any entitlement to an accounting of sale proceeds.

Source excerpt

• Minutes of settlement
• Transfer of property
• Accounting for sale proceeds
• Costs
• Finality of unappealed orders

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Dicecco v. Canada Mortgage and Housing Corporation

Court

Court of Appeal for Ontario

The appeals were dismissed because the application judge correctly found no improvident sale, no merger of mortgage and title, no de facto foreclosure, and that the guarantees expressly made the appellants liable as principal debtors; CMHC stood in the shoes of Investors Group and the appellants suffered no prejudice so the default judgments remain enforceable.

Source excerpt

• Default judgment
• Power of sale
• Merger of security and title
• De facto foreclosure
• Guarantee liability
• Assignment of mortgage

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