Barry Yellin

The applicants sought a declaration of possessory title over a three-foot strip of land abutting their cottage property.

The court found that while the applicants had actual possession of the disputed lands, they failed to establish an intention to exclude the true owners or that they effectively excluded them.

The disputed lands were open and accessible to the community, and the true owners frequently crossed and used the lands without restriction.

The application for adverse possession was dismissed.

The applicants sought a declaration of ownership over a portion of the respondent's neighbouring property by way of adverse possession.

The respondent brought a cross-application for a declaration of trespass and an order to remove a fence built by the applicants on the disputed lands.

The court dismissed the adverse possession claim, finding that the applicants' predecessors in title did not have continuous, peaceful, or exclusive possession for the requisite 10-year period prior to the lands being converted to the Land Titles system in 1996.

Consequently, the court granted the respondent's application, declaring the fence a continuing trespass and issuing a mandatory injunction for its removal.

Following a trial judgment where the plaintiff was awarded $76,275 in a breach of contract action originally claiming $250,000, the court determined the quantum of costs.

The plaintiff sought approximately $78,000, while the defendant argued for a 50% reduction based on the judgment falling within the simplified rules limit.

The court rejected both the plaintiff's claim for substantial indemnity and the defendant's request for a 50% reduction, but factored the late abandonment of the consequential damages claim into the award.

Costs were fixed at $55,000 all-inclusive.

The plaintiff purchased an edge banding machine from the defendant for its cabinetry business.

The machine failed to perform its more sophisticated functions, such as rounding, which the court found to be a breach of implicit terms of the contract.

However, because the plaintiff had accepted the goods under the Sale of Goods Act, the breach of condition was treated as a breach of warranty.

The court found the plaintiff failed to fully mitigate its damages by not taking reasonable steps to sell the machine.

Damages were awarded to the plaintiff for 50% of the contract price plus HST, totaling $76,275.

Following a summary judgment in favour of the plaintiff, the parties made supplementary submissions on costs.

The plaintiff sought substantial indemnity costs from the date of its offer to settle under Rule 49.10.

The defendant argued the offer did not comply with the rule because it was made in US dollars, contrary to section 121 of the Courts of Justice Act.

The court rejected this technical argument, finding the offer was a genuine compromise.

The court awarded the plaintiff costs of $21,288.71, including substantial indemnity costs from the date of the offer.

Following a prior decision granting summary judgment to the plaintiffs in the amount of $95,576.53 with prejudgment interest and no stay of execution, the court addressed the issue of costs.

The plaintiffs sought costs of approximately $38,000 inclusive of disbursements and HST, arguing entitlement to elevated costs under Rule 49 due to settlement offers.

The court found Rule 49.10 inapplicable because no settlement offers remained open for acceptance at the time of the summary judgment motion.

Applying the general presumption that a successful party is entitled to costs, the court held the plaintiffs were entitled to partial indemnity costs.

After considering overlap between work on the claim and counterclaim, the court fixed costs at $31,000 inclusive of disbursements plus HST.

The plaintiffs brought a motion for summary judgment against the defendant for $95,576.53 based on a personal indemnity agreement executed during the sale of a cosmetic clinic.

The defendant argued the indemnity was unenforceable because the underlying equipment leases were never formally assigned.

The court found the defendant waived the assignment requirement by completing the transaction and using the equipment for two years.

Summary judgment was granted, and the defendant's request for a stay pending her counterclaims was denied.

The defendants, representing 80% of the shareholders in a family business, brought a motion under section 248 of the Business Corporations Act seeking a compulsory buy-sell order to force the plaintiff, a 20% shareholder and widow of a deceased founder, to sell her shares.

The defendants argued that a deadlock existed because they did not want to share profits with a non-contributing shareholder.

The court dismissed the motion, finding that the defendants' desire to avoid sharing profits equally with the plaintiff did not constitute oppressive conduct under the Act.

The plaintiff's cross-motion for a forensic accounting was also dismissed.