Bernie Romano

A municipality brought a motion for injunctive relief to restrain trespass on an unopened road allowance, require remediation of a fence encroaching onto municipal land, and compel compliance with zoning bylaws governing commercial storage and fill activities.

Applying the RJR-MacDonald framework, the court held that the municipality met the test for an injunction respecting trespass, with public interest, property rights, and balance of convenience favouring relief.

The court also held that under s. 440 of the Municipal Act, proof of bylaw breaches entitled the municipality to a compliance order absent exceptional circumstances, and equitable defences such as unclean hands had little application.

The motion was granted in substantial part, subject to delayed effectiveness for part of the land-use compliance order and a 90-day opportunity to reach agreement regarding the fence encroachment.

The Plaintiff sought summary judgment for $322,343.30 for unpaid invoices.

The Defendant argued the motion was premature, citing contentious accounting and factual issues requiring further discovery and evidence.

The court dismissed the motion, finding the evidentiary record inadequate and that genuine issues of fact and credibility, particularly concerning invoicing practices, payment offsets, and product rebates, necessitated a trial.

The court also declined to grant leave to amend the Statement of Claim due to the absence of a proper supporting record and the need for the claim to be clearly defined within the pleadings.

This costs endorsement follows the dismissal of an appeal by Turano’s Home Improvement against a Master’s Report in favour of Zittell.

Zittell, as the successful party, claimed partial indemnity costs of $24,130.61.

Turano’s Home Improvement argued these costs were excessive, proposing $15,000.

The court, applying principles from the Courts of Justice Act and Rules of Civil Procedure, found Zittell’s claimed costs excessive given the non-complex issues and the amount recovered ($39,583.11).

The court fixed costs at $15,000 plus disbursements and HST, totaling $16,756.61, payable by Turano’s Home Improvement.

The plaintiff/appellant, a contractor, appealed a Master's report that found them in breach of contract for deficient renovation work and awarded damages to the defendant/respondent.

The Master found numerous deficiencies, including the use of an unlicensed electrician and safety hazards, leading to a fundamental breach and repudiation of the contract.

The Superior Court reviewed the Master's findings on a palpable and overriding error standard, upholding the Master's conclusions regarding breach of contract, repudiation, and damages, and dismissing the appeal.

The defendant brought a motion to stay the plaintiff's action, arguing that New Brunswick, not Ontario, was the proper jurisdiction.

The plaintiff, an Ontario corporation, sued the defendant for breach of contract and wrongful misappropriation arising from a transportation agreement and unpaid invoices.

The court applied the Van Breda test and found that the defendant was domiciled or resident in Ontario, carried on business in Ontario, and the contract was likely made in Ontario.

The court concluded there was a real and substantial connection to Ontario and the defendant failed to demonstrate that New Brunswick was a clearly more appropriate forum under the doctrine of forum non conveniens.

The motion was dismissed.

Members of Branch 1-7 of the Polish Alliance of Canada sought to withdraw from the organization and take with them a property held in trust for the branch members.

The trial judge found that 100% of the branch members had voted to leave and applied the "clubman's veto" doctrine, permitting them to depart with the property.

The Polish Alliance of Canada appealed, arguing that the clubman's veto did not apply because PAC was incorporated under the Corporations Act.

The Court of Appeal dismissed the appeal, holding that the clubman's veto applied to the unincorporated branch and that there was no statutory displacement of the common law rule.

The applicants, comprising 100% of the members of Branch 1-7 of the Polish Alliance of Canada, sought a declaration that they were entitled to leave the organization and take with them the property held in trust for them by the Polish Association of Toronto Limited.

The respondent argued that the property belonged to the central organization and raised issues regarding the rule against perpetuities.

The court applied the common law 'clubman's veto', finding that the unanimous members of an unincorporated association could disaffiliate and take their property.

The application was granted, and the applicants were awarded costs.

The court quantified costs previously awarded to the defendants (excluding one individual) against the plaintiff.

The plaintiff failed to submit costs outlines as directed, leading the court to infer that its costs would not have supported its position.

The court fixed partial indemnity costs for a motion at $10,075 and 50% of the trial costs at $194,159.70, considering the complexity, importance, and financial risk of the underlying litigation concerning a significant property.

Following a Court of Appeal decision that partially reversed the trial judgment regarding branch membership, the parties appeared to resolve outstanding issues and discharge the Receiver.

The court dismissed remaining claims on consent and reassessed the trial costs.

Finding that the defendants achieved a substantively better outcome on appeal by retaining their membership and ability to attempt secession again, the court awarded the defendants one-half of their trial costs on a partial indemnity basis.

The court maintained the 50/50 split for receivership costs but ordered the plaintiff to fully indemnify the defendants for the Receiver's costs of the appeal.

The appellants appealed a trial judge's order regarding the withdrawal of Branch 1-7 from the Polish Alliance of Canada (PAC) and the ownership of branch assets.

The Court of Appeal upheld the finding that the branch's withdrawal was invalid due to insufficient notice and lack of unanimous consent.

However, the Court found the trial judge erred in declaring that the individual appellants had resigned from PAC and were barred from reapplying, holding instead that they remained members in good standing.

The appeal was allowed in part, with the trial judge's order amended accordingly.

A court-appointed receiver sought approval of its reports, approval of fees and disbursements, authorization to sell a property to fund payment of those fees, and directions regarding the validity of a corporate board election.

The court approved the receiver’s activities and found the fees of both the receiver and its counsel to be fair and reasonable given the unusual and contentious nature of the receivership.

The court authorized the sale of the property under the receiver’s control to generate funds to pay the receiver’s outstanding fees.

The request for directions regarding the validity of the corporate board election was declined as beyond the scope of the receivership proceeding.

The court ordered that the parties benefiting from the receivership share the receiver’s fees on a 50/50 basis.

The respondents sought costs following a motion in which they obtained part of the alternative relief requested, although the applicant’s pleadings were not struck.

The court considered written costs submissions from the respondents, while the applicant declined to provide submissions due to an inability to obtain instructions from the client residing abroad.

The court found that the respondents achieved substantial and significant relief that advanced the proceeding.

In the circumstances, the court fixed reasonable costs in a modest lump sum.

Costs were ordered payable by the applicant to the respondents.

The applicant commenced an application seeking possession of a property, forfeiture of a $30,000 deposit under an agreement of purchase and sale, and damages arising from alleged vandalism and breach of the agreement.

The respondents argued the property was unsafe and sought to strike the applicant’s affidavit for failure to answer undertakings and refusals from cross-examination, while also seeking return of the deposit.

The court held that credibility disputes and conflicting evidence made the issues unsuitable for determination on the application record.

Pursuant to Rule 38.10 of the Rules of Civil Procedure, the remaining issues of damages and entitlement to the deposit were ordered to proceed to trial and the application was converted into an action.

The deposit was ordered paid into court pending determination by the trial judge.

The plaintiff religious corporation sought repayment of funds raised by its congregation that were used by the defendants to purchase and renovate a new, larger place of worship under a newly incorporated entity.

The plaintiff also sought repayment for a mortgage placed on its original property to fund its conversion into a funeral home.

The court dismissed both the plaintiff's claims for breach of trust, breach of fiduciary duty, and conversion, as well as the defendants' counterclaim for the value of improvements.

The court found that the fundraising and property transition were done with the knowledge and support of the original directors, and both parties ultimately benefited from the respective properties.

The defendants/plaintiffs by counterclaim abandoned their motion for leave to appeal, which was dismissed without costs.

The plaintiff's separate motion for leave to appeal was delayed because the required issued and entered orders had not been filed.

The court noted the substantial costs already incurred by the parties and suggested that case management by a single judge of the Divisional Court might be appropriate given the likelihood of multiple future appearances.

Costs for the appearance were left to the discretion of the judge hearing the remaining motion.

The court-appointed Receiver for the properties of a local branch of The Polish Alliance of Canada moved for directions regarding its administration.

The plaintiff national association criticized the Receiver's neutrality, objecting to the presence of former branch executives on the property and disputing the membership list for an upcoming executive election.

The court approved the Receiver's conduct as prudent and neutral, rejected the plaintiff's attempt to unilaterally dictate branch membership, and directed the Receiver to hold an election among the 19 recognized remaining branch members.

The Registrar issued a Notice of Proposal to revoke the registrations of SM Auto Rental Ltd. as a motor vehicle dealer and Baldev-Raj Mehta as a salesperson.

The proposal was based on allegations that Mehta assisted a friend in making false statements and non-disclosures on the friend's applications for registration in 2005 and 2012.

The Tribunal found that there was insufficient evidence of a deliberate intention to deceive on the part of the appellants, noting a language barrier and plausible explanations for the answers provided.

The Tribunal directed the Registrar not to carry out the proposal to revoke the registrations.

The plaintiff brought an urgent motion seeking directions regarding implementation of a prior order determining that certain lands were held in trust for members of a branch of a national organization and that the defendants were not proper representatives after resigning from the parent organization.

The court found that the defendants had no authority to admit new members or call a meeting to elect a new executive.

To prevent confusion and protect the property pending proper reconstitution of the branch membership, the court appointed a receiver and manager to take control of the branch assets and supervise the reconstitution process.

The court also prohibited the defendants and associated individuals from holding a purported members’ meeting or conducting an election of the branch executive.

The plaintiff, a national not-for-profit umbrella organization, sought a declaration that it owned the real property of one of its local branches after the branch's leadership purported to secede.

The defendants, representing the seceding branch, argued the branch was autonomous and owned the property beneficially.

The court found that the corporate holding vehicle held legal title to the property in trust for the members of the branch from time to time.

The court also held that the branch's purported secession was invalid because it lacked the unanimous consent of its members, meaning the branch and its beneficial property interests remained within the parent organization.

The appellants appealed the dismissal of their medical malpractice action against the respondent doctor following the death of a patient who underwent an axillary-femoral bypass.

The trial judge found the respondent breached the standard of care by using a graft that was 'not recommended' by the manufacturer and failing to obtain informed consent, but concluded the appellants failed to prove causation.

The Court of Appeal dismissed the appeal, holding that the trial judge did not err in his robust and pragmatic analysis of the evidence and correctly concluded that the 'material contribution' approach to causation was inapplicable.