Alan B. Dryer

A masonry subcontractor sued a residential home builder and its principals for unpaid invoices relating to masonry work across several housing projects.

The central dispute concerned whether the parties had agreed that the subcontractor could charge additional amounts for masonry work associated with minor grade variations on building lots.

The court accepted the builder’s evidence that, after earlier disputes, the parties agreed that only major grade changes such as walk‑outs, walk‑ups, or look‑outs would justify extra charges.

Numerous individual invoice disputes and counterclaims were resolved on the evidence, resulting in partial recoveries and credits between the parties.

Claims under Part II of the Construction Lien Act alleging breach of trust and personal liability against the corporate principals were dismissed due to lack of evidence of trust breach.

Following a motion hearing concerning a significant advance payment request in complex estate-related litigation, the court determined the appropriate costs award.

Applying the factors in Rule 57 of the Rules of Civil Procedure, the court considered the importance and novelty of the issues and the reasonable expectations of experienced litigants.

The plaintiff was successful and entitled to substantial costs for the motion.

The court also addressed the entitlement of the estate trustee during litigation to costs payable from the estate under a prior order.

A surviving spouse sought an advance equalization payment of $4.5 million from the estate of her deceased husband under the Family Law Act or, alternatively, partial summary judgment.

The motion was opposed by several defendants asserting potential claims against the estate and challenging their standing and the appropriateness of the advance.

The court held that the equalization entitlement between spouses is personal under the Family Law Act and that the defendants were neither proven creditors nor beneficiaries.

Applying the three-part test for advance equalization payments from Laamanen v. Laamanen, the court found a reasonable need for litigation funding, little doubt of entitlement to at least the requested amount, and that granting the advance was just in the circumstances.

Following earlier rulings on a derivative leave motion in estate litigation, the court addressed outstanding procedural directions and the issue of costs for five related motions.

The plaintiffs sought substantial indemnity costs exceeding $144,000 for work connected primarily to the derivative issues.

Applying Rule 57 of the Rules of Civil Procedure and the proportionality principles discussed in Boucher v. Public Accountants, the court held that the requested amount far exceeded the reasonable expectations of the unsuccessful parties for a one‑day motion.

Substantial indemnity costs were denied.

The court fixed costs payable by the defendants jointly and severally at $55,000 inclusive of taxes and interest.

The applicants sought leave to appeal decisions of the Ontario Municipal Board that approved a development application.

The applicants argued the approval effectively down-zoned a neighbouring property by creating a key lot, without a rezoning application being before the Board.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the Board's jurisdiction to change zoning without following the procedures in the Planning Act, and concluding the issue was of sufficient importance to municipalities to warrant the attention of the full panel.

The appellants appealed a motion judge's decision dismissing their claim for a readjustment to the purchase price paid to the respondent.

The appellants argued that the respondent's potential right to a reassignment of the mortgage created a cause of action against the financial corporation.

The Court of Appeal dismissed the appeal, finding no connection between the right to reassignment and any obligation to be bound by the agreement of purchase and sale.

The appellants appealed a damage award made under s. 6(6)(d) of the Arthur Wishart Act, arguing the respondent was not entitled to recover $82,127.49 paid to clear a prior franchisee's debt.

The Court of Appeal dismissed the appeal, finding that the payment constituted a loss incurred in acquiring, setting up, and operating the franchise, and was therefore compensable under the Act.

The appellant successfully defended a claim for trespass and damage to property at trial, but the trial judge dismissed the claim without costs and without giving the appellant an opportunity to make costs submissions.

On appeal, the Divisional Court held that while a trial judge has discretion to refuse costs, procedural fairness requires hearing submissions first.

The court considered the matter afresh and awarded the appellant costs of the trial on a partial indemnity scale, as well as $7,000 for the appeal.

The City of Toronto appealed a decision of the Ontario Municipal Board that permitted the respondent to convert a 20-storey affordable rental apartment building into a condominium.

The Divisional Court found that the Board applied the wrong legal test by merely 'having regard to' the Provincial Policy Statement 2005 instead of ensuring its decision was 'consistent with' it, as required by the Planning Act.

Furthermore, the Board failed to properly consider the specific mandatory criteria in the City's Official Plan regarding condominium conversions and the health of the rental housing market.

The appeal was allowed, the Board's decision was set aside, and the matter was remitted for a new hearing.

The City of Toronto appealed a decision of the Ontario Municipal Board that granted four minor variances to permit the construction of a three-storey retirement home in a Highway Commercial zone.

The Divisional Court allowed the appeal, finding the Board's decision unreasonable.

The Board failed to properly apply the four-part test under section 45(1) of the Planning Act, misinterpreted the Official Plan and zoning by-law, and failed to justify how significant departures from density limits and lot coverage requirements could be considered minor.

The applicant municipality sought leave to appeal a decision of the Ontario Municipal Board that allowed the respondent to convert a 161-unit affordable rental apartment building into a condominium.

The municipality argued the Board erred in its application of the Planning Act and disregarded provincial and municipal policies protecting rental housing.

The Divisional Court granted leave to appeal, finding reason to doubt the reasonableness of the Board's decision for failing to consider the specific city-wide housing policies and condominium conversion policies in the Provincial Policy Statement 2005 and the municipality's Official Plan.

The plaintiffs sought leave to appeal an interlocutory order dismissing their motion under s. 12(3) of the Mortgages Act to pay disputed mortgage funds into court pending trial.

The dispute arose over adjustments to the purchase price of subdivision lots based on frontage.

The Divisional Court found no reason to doubt the correctness of the motion judge's discretionary decision, which was based on a holistic assessment of the relative equities and the plaintiffs' failure to establish an arguable case.

The motion for leave to appeal was dismissed with substantial indemnity costs awarded to the defendants.

The City of Toronto sought leave to appeal a decision of the Ontario Municipal Board that allowed a developer's application for minor variances to permit a retirement residence.

The City argued the application should have proceeded as a rezoning and Official Plan amendment, as the proposal changed the permitted use and significantly exceeded lot coverage and density limits.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the Board's legal interpretation of the minor variance test under section 45(1) of the Planning Act and its application of the Official Plan and Secondary Plan.

The City of Toronto and Kingsway Residents Against Poor Planning brought motions for leave to appeal an Ontario Municipal Board (OMB) decision approving a zoning by-law amendment for a seven/eight-storey development.

The applicants argued the Board erred in law by applying the repealed Etobicoke Official Plan rather than the City's in-force Official Plan, relying on the 'Clergy Principle'.

The Divisional Court dismissed the motions, finding the Board committed no error of law and properly exercised its discretion in weighing the evidence and applying the Clergy Principle.

The moving party sought leave to appeal a decision of the Ontario Municipal Board.

The Board had ruled it lacked jurisdiction to impose conditions on a private developer's subdivision approval for the benefit of an adjacent private landowner's future development.

The Divisional Court dismissed the application for leave, finding no reason to doubt the correctness of the Board's decision on jurisdiction and rejecting the argument that procedural defects could bestow jurisdiction.

The moving party sought leave to appeal a decision of the Ontario Municipal Board that approved Official Plan and zoning by-law amendments permitting a mixed residential and commercial development on adjacent lands.

The moving party argued the Board erred in law by failing to apply the 2005 Provincial Policy Statement, exceeded its jurisdiction by extending the re-designation to intervening properties, and breached natural justice by refusing to admit late noise evidence.

The Divisional Court dismissed the motion, finding no good reason to doubt the correctness of the Board's decision on any point of law, and awarded costs to the responding parties.

Following a judicial review application, the respondent developers and the Ontario Municipal Board sought costs.

The applicants argued they should be absolved from paying costs.

The court rejected the applicants' argument, noting that fixing costs must respond to the reasonable expectations of the parties.

The court awarded costs to the respondents on a partial indemnity basis, fixing costs at $10,500 for the developers and $1,000 for the Ontario Municipal Board.

The appellants appealed an order dismissing their counterclaim against the respondent solicitors for negligence in drafting loan documents and releasing security documents held in escrow.

The motion judge had dismissed the counterclaim on the basis that the appellants had signed a release in favour of the solicitors.

The Court of Appeal allowed the appeal, finding that the release was executed in the context of a fee dispute and did not specifically list the matters raised in the counterclaim.

The Court concluded there was a genuine issue for trial regarding the scope, operation, and potential unconscionability of the release.

The appellant appealed a trial judgment dismissing its claim on a personal guarantee.

The respondent, a bookkeeper, signed a document described to her as being for 'standard credit information' without reading the small print containing the guarantee.

The Court of Appeal upheld the trial judge's application of the Tilden v. Clendenning principle, finding that the appellant knew or ought to have known the respondent would not read the form and did nothing to bring the guarantee to her attention.

The appeal was dismissed.

The appellants appealed a judgment of the Superior Court of Justice to the Court of Appeal.

The Court of Appeal quashed the appeal in its court and transferred it to the Divisional Court, awarding costs thrown away to the respondents.