Amber Bonnell

The Court of Appeal for Ontario dismissed Rene Luypaert’s appeal from an order granting the sale of a jointly owned property and a writ of possession for another property, both owned by his parents, for whom his sisters acted as litigation guardians.

The court found no error in the application judge’s refusal to grant an adjournment, in the application of the Partition Act, or in the issuance of the writ of possession.

The court also confirmed its jurisdiction to hear the appeal, given the mixed nature of the relief granted.

Costs were awarded to the respondents.

The plaintiffs accepted the defendants' offer to purchase their residential property for $1,200,000, which required a $40,000 deposit upon acceptance.

The defendants failed to pay the deposit and advised they could not complete the purchase.

The plaintiffs accepted the repudiation and sold the property to another buyer for $1,130,000.

The plaintiffs sued for the $70,000 difference in purchase price.

The court held that the deposit was not a condition precedent to the contract, the defendants breached the agreement, and the plaintiffs reasonably mitigated their damages by selling to the other buyer without re-listing the property.

Judgment was awarded to the plaintiffs for $70,000.

The applicant was substantially successful in her application concerning property rights (driveway and water well) and entirely successful in dismissing the respondent's cross-applications.

This decision addresses the costs incurred.

The applicant sought full indemnity costs of $131,368.89, or partial/substantial indemnity.

The court declined to award costs for a motion for directions and found no basis for substantial indemnity costs due to reprehensible conduct.

While the applicant's Rule 49 offer was favourable, the court exercised discretion not to apply Rule 49.10 consequences fully because the applicant was not wholly successful on all claims (e.g., harassment, damages).

Considering all factors, including the complexity, importance, and the applicant's reasonable conduct, the court awarded the applicant $65,000.00 in costs, inclusive of fees, disbursements, and HST, payable within 90 days.

The applicant, Shelley Ottele, initiated an application challenging the validity of Powers of Attorney signed by her deceased father, Leo Racine, appointing Aimy Racine, and sought damages for fraud, unjust enrichment, and breach of fiduciary duty.

This endorsement addresses two motions: the applicant's motion to stay proceedings pending an appeal, and the respondent Aimy Racine's motion for security for costs.

The court dismissed the applicant's motion to stay, finding no persuasive basis.

The court granted the respondent's motion for security for costs, finding good reason to believe the applicant's underlying application was frivolous and vexatious and that she had insufficient assets in Ontario to pay costs, as required by Rule 56.01(1)(e).

The applicant was ordered to pay $75,000 as security for costs and $25,253.24 in costs for the motion.

The applicant sought declarations that her property had no right-of-way or easement for the respondent's use of a driveway and water well, and an order prohibiting such use.

The respondent filed cross-applications claiming a right-of-way or ownership of the disputed land.

The court found that the driveway and water well were entirely on the applicant's property, and no express, prescriptive, or implied easements existed in favour of the respondent's property due to unity of ownership by a predecessor in title and lack of strict necessity.

The court dismissed the respondent's cross-applications and granted the applicant's application, subject to a six-month suspension of enforcement to allow the respondent to establish alternative access and water.

The applicant trustee sought directions to wind up a trust held for a beneficiary residing in Florida, pay the proceeds to a Florida guardian, and receive compensation and costs.

The beneficiary's mother challenged the court's jurisdiction, the validity of the trust, and the trustee's claims for compensation and costs.

The court found it had jurisdiction, upheld the validity of the trust, dispensed with a formal passing of accounts, and ordered the trust wound up with proceeds paid to a Florida guardian.

The trustee was awarded compensation and substantial indemnity costs payable from the trust.