Andrea M. Habas

The parties, who are siblings and tenants in common of a family farm, previously agreed to an order for its sale.

While the property was listed for sale, the moving party sought to use the farm as she had in the past.

The responding parties objected, arguing that the property should remain unused until sold.

The court granted the motion, holding that as co-owners, each sibling has an equal right to reasonably use the property in a manner that does not interfere with its sale or the rights of the other co-owners.

The court established a schedule for each co-owner's exclusive use of the property pending its sale.

The plaintiff brought a motion to amend its statement of claim to correct a misnomer in its name, changing it from 'Urban Life Residential, In Trust' to 'Urban Life Residential Inc., In Trust', and to extend the time to file a trial record.

The defendant opposed and brought a cross-motion for summary judgment dismissing the action, security for costs, and to discharge a certificate of pending litigation (CPL).

The court granted the plaintiff's motion to amend, finding it was a case of misnomer and the defendant was not misled.

The court dismissed the defendant's cross-motion for summary judgment, finding genuine issues for trial regarding the identity of the purchaser and the validity of the trust.

The requests for security for costs and discharging the CPL were also dismissed.

The plaintiffs brought an action against the defendant, the sister of one of the plaintiffs, regarding the allocation of proceeds from the sale of a jointly owned property, damages for ouster, and conversion of personal property.

The defendant counterclaimed for unjust enrichment, alleging she was a 50% beneficial owner of the plaintiffs' restaurant businesses under a joint family venture.

The Superior Court of Justice dismissed the counterclaim, finding no joint family venture existed in this extended family context and that the defendant failed to prove she made a direct financial contribution.

The court granted the plaintiffs' action in part, awarding damages for the defendant's ouster of the plaintiffs from the joint property and for the conversion of various personal items, including a grand piano.

The defendant brought a motion to extend trial procedures, withdraw deemed admissions, and seek further documentary production on the eve of a twice-adjourned trial.

The court granted the defendant leave to file new trial affidavits, deliver late notices of objection, and withdraw deemed admissions, finding that the lapses were inadvertent and the preference is to decide matters on their merits.

However, the court ordered the defendant to pay $50,000 in costs thrown away and $20,000 in motion costs to the plaintiffs as a condition of the relief.

The plaintiff brought a motion to set aside a Registrar's order dismissing his action for delay.

The action involved a claim for repayment of a $161,000 loan allegedly made to the defendants for a property purchase.

The court applied the Reid test and found that the plaintiff provided a reasonable explanation for the delay, the deadline was missed through the inadvertence of his former counsel, the motion was brought promptly once the dismissal was discovered, and the defendants would not suffer actual prejudice.

The motion was granted and the dismissal order was set aside.

The defendants brought a motion to discharge a certificate of pending litigation (CPL) obtained by the plaintiff against a property and for an order that the plaintiff post security for costs.

The plaintiff opposed, alleging fraud in the property's sale and seeking an injunction.

The court found that the plaintiff failed to make full disclosure of material facts when obtaining the CPL and did not have a reasonable claim to an interest in the land, leading to the discharge of the CPL.

The court also ordered the plaintiff to post security for costs, as the plaintiff corporation had insufficient assets and its principal failed to provide adequate financial disclosure to prove impecuniosity.

The appellant appealed a judgment dismissing its application regarding a failed real estate transaction.

The respondent sellers terminated an agreement of purchase and sale due to the appellant's failure to pay a further deposit.

The application judge found the termination was effective and that the respondents did not waive their right to terminate by engaging in subsequent negotiations.

The Court of Appeal upheld the application judge's decision, finding no error in the application of the doctrine of waiver and dismissing the appeal with costs awarded to the respondents.

The defendant brought a motion to set aside a default judgment and noting in default obtained by the plaintiff in an action arising from a marketing agreement.

The defendant failed to defend the action because it had not updated its corporate profile address and did not receive the statement of claim.

The court found that although the motion was not brought promptly, the defendant had a plausible explanation for the default and established an arguable defence of set-off on the merits.

The motion was granted and the default judgment was set aside with no costs awarded.

The applicant sought judicial review of two decisions by the Human Rights Tribunal of Ontario that summarily dismissed his application alleging discrimination on the basis of race, colour, and reprisal by a retail store.

The Tribunal had found no reasonable prospect of success because the applicant failed to point to evidence establishing a link between the store's actions and his race or colour.

The Divisional Court dismissed the application for judicial review, finding that the Tribunal's decisions were transparent, intelligible, and fell within the range of reasonable outcomes.

The defendant George Pappas moved to set aside a default judgment obtained by the plaintiff Lucy Romero, arguing irregularity in the judgment and offering an explanation for default.

The court found a clear irregularity as the judgment ordered Pappas to pay a sum not requested in the statement of claim against him.

The court also considered the test for setting aside default judgment, finding Pappas's explanation plausible and an arguable defence, with no prejudice to the plaintiff.

The motion to set aside the default judgment against Pappas was granted, and all enforcement proceedings against him were stayed.

The appellant appealed a decision of the Superior Court of Justice.

The Court of Appeal found no error in the motion judge's conclusion and dismissed the appeal with costs fixed at $8,000 inclusive of disbursements and HST, payable $4,000 to each respondent.

The applicant buyer and respondent seller entered into an agreement of purchase and sale for commercial real estate.

The agreement included a financing condition that required the buyer to pay a second deposit 'at the time' of notifying the seller that the condition was waived.

The buyer waived the condition late in the evening on the deadline date but did not provide the second deposit until the following afternoon.

The seller took the position that the agreement was terminated.

The court found that, in the context of the factual matrix and the 'time is of the essence' clause, the parties intended for the deposit to be paid contemporaneously with the waiver.

The buyer's application for specific performance was dismissed, and the seller's application for a declaration that the agreement was void was granted.

The applicant, Claudio Posocco, sought a declaration that his guarantee for a mortgage was discharged.

This application was a re-hearing ordered by the Court of Appeal, based on fresh evidence of a foreclosure judgment obtained by a prior mortgagee.

Posocco argued that the foreclosure extinguished his guarantee for a junior mortgage.

The court dismissed the application, distinguishing the facts from *Rushton v. Industrial Development Bank* by noting that the mortgages were distinct, not a single mortgage encompassing multiple parcels.

Relying on *Isman v. Sinnott*, the court held that foreclosure of a first mortgage by a party who also held a junior mortgage did not extinguish the rights under the junior mortgage's covenant.

Additionally, the court found that the guarantee's contractual terms explicitly made Posocco liable as a principal debtor even in the event of prior foreclosure, and that the property had not yet been disposed of, leaving open the potential for reconveyance.

The appellant guaranteed a mortgage granted by his company.

After default, the respondents obtained judgment against the appellant on the guarantee.

The respondents subsequently postponed their mortgage to other mortgages held by related companies, and a foreclosure judgment was obtained.

The appellant applied to set aside the judgment against him, arguing the postponement materially altered his risk and terminated the guarantee.

The application judge dismissed the application.

On appeal, the Court of Appeal upheld the interpretation that the guarantee permitted the postponement without consent.

However, the Court admitted fresh evidence of the foreclosure judgment and remitted the issue of its effect on the enforceability of the judgment against the appellant to the application judge.

The respondent sold a marina to the appellant, who subsequently defaulted on payments.

The parties entered into Minutes of Settlement, which the appellant also breached.

The respondent successfully moved for summary judgment.

The appellant appealed, arguing she was entitled to a set-off for snow storm damage that occurred while the respondent remained in possession, claiming he owed a duty as a mortgagee in possession.

The Court of Appeal dismissed the appeal, finding no duty to maintain or insure the property was pleaded or established in the Minutes of Settlement.

The applicant sought a declaration that a personal guarantee was void and unenforceable after the creditor postponed a mortgage securing the underlying debt without the guarantor’s knowledge or consent.

The applicant argued that a guarantor is discharged when a creditor materially alters the contract governing the debt.

The court held that guarantors may contract out of common law protections and that the wording of the guarantee expressly permitted the creditor to vary or modify security without releasing the guarantor.

Interpreting the guarantee’s broad language, the court found the parties intended the guarantor’s liability to remain despite alterations to the security arrangements.

The application to void the guarantee and set aside the prior judgment was dismissed.

The appellant applied for a declaration of a prescriptive easement over a private laneway behind its property.

The application judge dismissed the application, finding the 20-year use was by licence rather than as of right.

On appeal, the Court of Appeal found no evidence to support the finding of permission.

The court held that the continuous, open, and uninterrupted vehicular use of the laneway for over 20 years raised an inference of acquiescence by the servient owner, shifting the evidentiary burden to the respondent to prove permission.

As no such evidence was adduced, the appeal was allowed and the easement declared.

The plaintiffs brought motions to set aside registrar's orders dismissing their construction dispute actions for delay.

The delay was largely unexplained and attributed to the plaintiffs' former counsel, who suffered from health issues and subsequently passed away.

Although the plaintiffs failed to meet three of the four Reid factors, the court found they successfully rebutted the presumption of prejudice.

The defendants' conduct, including their willingness to schedule discoveries after the dismissal, indicated no actual prejudice.

The motions were granted and the dismissal orders were set aside.

Following dismissal of an application for a prescriptive easement, the successful respondent sought partial indemnity costs.

The unsuccessful applicants argued the amount was disproportionate, particularly given the nature of the property dispute and the respondent's greater financial means.

The court applied the costs discretion under s. 131 of the Courts of Justice Act, together with Rules 57.01 and 1.04(1), and held that the respondent was entitled to recover fair and reasonable costs reflecting the complexity of the matter and the steps taken to defend its property rights.

Partial indemnity costs were fixed at $76,521.49, payable jointly and severally by the applicants.

Several defendants in an insurer’s civil fraud action brought motions seeking full particulars of allegations relating to allegedly inflated or fabricated accident benefit invoices submitted through medical service providers.

The insurer alleged improper billing practices involving treatment plans and treatment invoices but refused to provide detailed particulars, asserting privacy concerns under the Personal Health Information Protection Act and offering only a spreadsheet during discovery.

The court held that the pleadings lacked sufficient material facts and that allegations amounting to misrepresentation require full particulars under Rule 25.06(8) of the Rules of Civil Procedure.

The court rejected the argument that the issue became moot after the insurer served an amended pleading removing the words “fraud” and “collusion”, finding the core allegations still required particularization.

The insurer was ordered to deliver the requested particulars within 30 days.