Adam Joseph Ezer

The plaintiff tenant brought an action for breach of contract and a construction lien against the defendant landlord and property manager for renovations completed in his rental unit.

The plaintiff alleged an oral agreement with the deceased principal of the property manager, whereby the plaintiff would renovate the unit and be paid for labour and materials upon the sale of the building.

The defendants denied the existence of the contract.

The court found the plaintiff's evidence credible and corroborated by circumstantial evidence, establishing an enforceable oral contract.

The court awarded the plaintiff $30,142 in damages for breach of contract, to be paid from funds posted in court, and recognized a valid lien for $26,859.15.

The plaintiff succeeded on a motion to refer a construction lien action to an Associate Judge for trial.

The plaintiff sought costs on a substantial indemnity basis, arguing the defendants defended the action disproportionately.

The defendants argued no costs should be awarded as the motion raised a novel point of law.

The court found the issue was not novel but declined to award substantial indemnity costs, finding no reprehensible conduct.

Costs were fixed on a partial indemnity basis at $4,975.00.

The plaintiff brought a motion under s. 58(1) of the Construction Act to refer a construction lien action to an Associate Judge for trial.

The defendants opposed, arguing that because the claim amount fell within the monetary jurisdiction of the Small Claims Court, the court was mandated to refer the matter to the Small Claims Court.

The court rejected the defendants' statutory interpretation, holding that s. 58(1) confers discretion to refer the action to either an Associate Judge or the Small Claims Court.

Applying the principles of proportionality and timeliness, the court exercised its discretion to refer the action to an Associate Judge.

The defendants brought a motion for leave to appeal the order of Associate Justice C. Wiebe.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $2,667.93 to the responding party.

The defendants brought a motion under section 47 of the Construction Act to discharge the plaintiff's construction lien, vacate the certificate of action, and dismiss the action.

The motion was based on four grounds: the oral contract was prohibited by the Statute of Frauds, lack of corroboration under the Evidence Act section 13, lack of certainty in the contract's essential elements, and no claim for unjust enrichment.

The court dismissed the motion, ruling that the Construction Act is a complete code for construction liens, allowing for oral contracts as an exception to the Statute of Frauds.

It also found that the Evidence Act section 13 did not apply as the action was not against the deceased's estate, the oral contract had sufficient certainty, and the unjust enrichment claim was an alternative remedy not subject to a section 47 motion.

Costs were awarded to the plaintiff.

The applicant was catastrophically impaired in a motor vehicle accident and sought statutory accident benefits, including attendant care and home modifications.

The respondent insurer partially denied the claims based on its own assessments.

The Licence Appeal Tribunal found that the applicant's functional limitations, including cognitive and physical impairments, necessitated the maximum attendant care benefit of $6,000 per month and home modifications totaling $344,864, which included an in-home elevator and therapy room.

The Tribunal also awarded the cost of a housing analysis assessment but denied the cost of a second attendant care assessment submitted prematurely.

Finally, the Tribunal ordered a special award under s. 10 of Regulation 664, finding the respondent unreasonably withheld benefits by failing to properly investigate the applicant's functional needs despite having access to medical evidence supporting the claims.

This decision addresses a costs award following cross-motions for summary judgment in a commercial lease dispute.

The court had largely ruled in favour of the tenant, dismissing the landlord's action and granting the tenant's cross-motion on liability.

The tenant sought $78,060 in costs under simplified procedure (Rule 76).

The court found this request neither reasonable nor proportionate, given the landlord's dismissed claim was $66,496 and the tenant's damages claim was still proceeding to trial.

Adopting the landlord's suggestion, the court fixed costs at $45,000 all-inclusive, payable by the landlord to the tenant, emphasizing the principle that costs must be reasonable and proportionate to the amount recovered in simplified procedure.

The plaintiff landlord terminated a commercial lease after a dispute over plumbing alterations for a hand-sink.

The landlord brought a motion for summary judgment for damages, and the defendant tenants cross-moved for summary judgment on their counterclaim for improper termination.

The court found that the tenant was taking reasonable steps to cure the alleged default within the notice period, making the landlord's termination premature and unjustified.

The landlord's action was dismissed, and the tenants were granted summary judgment on liability, with the assessment of damages referred to trial.

The applicant sought payment for a family and social assessment and custom orthotics following a motor vehicle accident.

The applicant argued that the insurer failed to respond to the treatment plans within the required time, resulting in deemed approval under the Statutory Accident Benefits Schedule.

The arbitrator held that the deemed approval provisions relate to the timing of interim payments pending dispute resolution and do not override the substantive requirement that expenses be reasonable and necessary.

The arbitrator found insufficient evidence to prove the treatment plans were properly submitted or that the claimed expenses were reasonable and necessary.

The claims were dismissed.

Following the dismissal of both the appeal and cross-appeal regarding whether glass doors and track lighting were chattels or fixtures, the court determined the issue of costs.

Given that the main issue was similar in both the appeal and cross-appeal and the trial judge's findings were upheld, the court ordered that each party bear its own costs.

The appellants appealed a Small Claims Court judgment awarding the respondent landlord $10,747.65 for rent arrears, repairs, misappropriation of glass doors, and clean-up costs following the end of a commercial lease.

The landlord cross-appealed the finding that track lighting constituted chattels or trade fixtures.

The Divisional Court applied the palpable and overriding error standard of review and found no basis to interfere with the trial judge's findings of fact and mixed fact and law.

Both the appeal and cross-appeal were dismissed.

The appellants sought to introduce voluminous fresh evidence on appeal, conceding that without it, there was no basis to allow the appeal.

The proposed evidence consisted of discovery materials that the appellants failed to obtain before trial because they did not compel the respondents' attendance.

The Court of Appeal applied the Sengmueller test and declined to admit the fresh evidence, as it could have been obtained with reasonable diligence prior to trial.

The appeal was dismissed.

The plaintiffs brought a motion seeking a non-party production order in an action where the statement of claim had not yet been issued and served.

The documents were sought primarily to support a motion in the Court of Appeal for leave to introduce fresh evidence in a separate appeal.

The court held that Rules 30.10 and 31.10 of the Rules of Civil Procedure permit non-party production only where necessary to fairly proceed to trial.

Because the action was not yet ready for trial and the plaintiffs’ purpose was to obtain evidence for an appellate motion rather than the trial itself, the request constituted an abuse of process.

The court further held that it lacked jurisdiction to grant such relief and that any request for evidence to support a fresh evidence motion should be made to the Court of Appeal.

The applicant appealed a decision by Tarion Warranty Corporation disallowing a claim for a Major Structural Defect regarding the breakdown of a hot water installation that serviced radiant floor heating and a snow melt system.

The applicant argued that the hot water tank was misapplied and its failure left parts of the home without supplemental heating.

The Tribunal dismissed the appeal, finding that because the home's primary heat source was two furnaces, the loss of the supplemental radiant heating and snow melt did not materially and adversely affect the normal use of the building as a home, and therefore did not meet the statutory definition of a Major Structural Defect.

The applicant sought costs after successfully obtaining leave to appeal a property tax assessment decision.

Before the costs order was finalized, the applicant requested a correction to the court's earlier reasons, noting the court had misunderstood its position regarding a claim for a refund of taxes for 2006 to 2008.

The court corrected its reasons, acknowledging the applicant had not abandoned its claim for a refund, but found this did not change the outcome of the leave to appeal motion.

The court then awarded the applicant costs of $8,700 on a partial indemnity scale, to be paid equally by the respondents, finding the amount reasonable given the complexity and importance of the issues.

The applicant sought leave to appeal a decision of the Assessment Review Board regarding the property tax assessment of its property, and an extension of time to file the notice of application.

The Board had assessed the property based solely on its recent purchase price, without adjusting for the assessed values of similar properties in the vicinity as required by the Assessment Act.

The Divisional Court granted the extension of time, finding the statutory time limit to be procedural and the delay adequately explained.

The Court also granted leave to appeal, finding reason to doubt the correctness of the Board's decision and that the interpretation of the equity provisions in the Assessment Act raised an issue of law of significance.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision that denied him temporary disability benefits and found no permanent impairment from a workplace accident.

The applicant argued WSIAT erred by relying on a general medical discussion paper, failing to consult a medical advisor, and improperly weighing the evidence.

The Divisional Court dismissed the application, finding WSIAT's decision was reasonable, supported by the applicant's own medical records showing pre-existing back pain, and that WSIAT, as an expert tribunal, was not required to consult a medical advisor.

The parties sought their respective expenses following an arbitration decision that dismissed the applicant's claim for statutory accident benefits.

The insurer argued it was wholly successful and entitled to expenses.

The applicant argued the insurer's representative unnecessarily prolonged and obstructed the hearing.

The arbitrator found that the insurer's representative's conduct, including unnecessary preliminary objections and repetitive cross-examinations, unnecessarily prolonged a simple one-day hearing into three days.

Consequently, the insurer was denied its expenses.

The applicant was also denied his expenses because his underlying claim failed due to his lack of credibility and significant contradictions with his medical records.

Each party was ordered to bear its own expenses.

Following an unsuccessful arbitration for statutory accident benefits, the insurer sought its expenses.

The applicant argued the insurer was precluded from claiming expenses due to a four-month delay in requesting the assessment.

The arbitrator found the delay was a technical breach that caused no prejudice to the applicant.

In assessing the quantum of expenses, the arbitrator reduced the insurer's claim from $12,339.87 to $6,000, noting that the applicant's case raised a novel issue regarding the Pre-approved Framework Guideline for Whiplash Associated Disorder Grade II injuries, which warranted a reduction in the costs payable.

The Applicant was injured in a motor vehicle accident and claimed statutory accident benefits for caregiver and housekeeping expenses.

The Insurer paid portions of the claims but denied others based on in-home assessments and insurer examinations.

The Arbitrator reviewed the medical evidence, including reports from occupational therapists and physiatrists, and found the Applicant was entitled to an additional $310.00 for caregiver benefits and $42.50 for housekeeping expenses for specific periods where the Insurer unreasonably denied or miscalculated the benefits.

Claims for periods after October 2005 were dismissed as the evidence showed the Applicant had regained independence in her activities of daily living.