Brendan Alexander Bell Jones

The appellant, a mortgagee, appealed a motion judge's decision that granted priority to construction lien claimants over his registered third mortgage.

The Court of Appeal dismissed the appeal, affirming that the advances made by the mortgagee did not fall within the exceptions of s. 78(2) or s. 78(6) of the Construction Act.

The court held that advances must be "made in respect of" the mortgage and the intention to secure financing must operate prospectively to gain priority over liens.

The decision reinforces the general principle of priority for lien claimants and the onus on mortgagees to clearly fall within statutory exceptions.

The applicant landlords sought to enforce a Relief From Forfeiture Agreement and terminate a commercial lease due to the tenant's failure to pay rent.

The tenant argued it was protected from eviction based on its application for the Canada Emergency Rent Subsidy (CERS).

The court found that the tenant had breached the conditional agreement, which explicitly stated the landlord would not be prejudiced by a stay of eviction based on CERS.

The court granted the application, terminating the lease and awarding judgment for rent arrears and costs against the tenant and its indemnifiers.

At a case conference, the applicant landlord requested an interim order requiring the respondent commercial tenant and its indemnifiers to pay outstanding rental arrears and ongoing rent until the application hearing.

The court ordered the respondents to pay full monthly rent going forward, but declined to make an order regarding accumulated arrears as the respondents' counsel had just been retained and needed time to respond.

In a supplementary costs endorsement, the court reviewed the respondents' late-filed Costs Outlines.

The respondents argued that their costs were substantially lower than the applicant's, pointing to differences in the number of counsel billing and hourly rates.

The court found the applicant's counsel's higher hourly rate to be within the reasonable market range and noted that the respondents' outline omitted time spent by another lawyer on the file.

The court concluded that the new information did not alter its prior finding that the applicant's costs were reasonable.

Following the granting of interlocutory injunctions against the respondents, the applicant sought costs on a substantial indemnity basis.

The court found that the respondents engaged in deliberate and high-handed conduct by attempting to unilaterally terminate commercial leases and evict the applicant without legal basis, aiming to frustrate the court proceedings.

The court exercised its discretion to award costs immediately rather than reserving them to the trial judge, fixing costs at $58,000 and $45,000 payable forthwith on a substantial indemnity scale.

Parkland Corporation sought an interlocutory injunction to prevent SRAA Inc. and 1064110 Ontario Ltd. from unilaterally terminating their gas station leases and subleases to re-lease the properties to a competitor selling Esso brand fuel.

The respondents argued the agreements were essentially fuel supply contracts and that they were operating at a loss.

The court found that the respondents deliberately breached their contracts and that Parkland would suffer irreparable harm from the loss of control over the sites.

The court granted the interlocutory injunctions, enforcing the leases and the negative covenants in the subleases pending a final determination.

The plaintiffs alleged that the defendant, an officer of their corporation, fraudulently and without authorization registered two mortgages against their properties.

They also sued the lawyer who registered the mortgages for negligence and the mortgagees for relying on the mortgages despite alleged red flags.

The court dismissed the action, finding that the officer had actual authority to bind the corporation under its by-laws, the plaintiff was aware of and benefited from the mortgages as part of a scheme to avoid foreign creditors, the lawyer met the standard of care, and the mortgagees were protected by the indoor management rule and the Land Titles Act.

The County sought costs on a substantial indemnity scale for the applicants' abandoned leave to appeal motion regarding the production of records from closed municipal meetings.

The applicants' appeal became moot after closed meeting investigators concluded the meetings were improperly closed, leading the County to release the records.

Although the court found the leave motion would likely have been unsuccessful, it exercised its discretion under Rule 37.09(3) to order no costs due to the County's actions in improperly closing the meetings.

The receiver brought a motion for directions to determine whether an appeal from a priority dispute order in a receivership lies to the Court of Appeal under the Bankruptcy and Insolvency Act or to the Divisional Court under the Construction Act.

The Court of Appeal held that because the motion judge's order was granted in reliance on jurisdiction under the Bankruptcy and Insolvency Act, specifically a receiver's application for directions under s. 249, the appeal route is to the Court of Appeal.

The plaintiff, Homelife/Miracle Realty Ltd., brought a motion for summary judgment against the defendant 2503661 Ontario Ltd. for unpaid real estate commission.

The commission was allegedly due following a property sale that converted into a share purchase transaction.

Homelife argued that 250 was bound by the commission agreement, either directly, as a successor, or through a relaxation of the privity of contract rule. 250 denied liability and sought summary judgment dismissing the action.

The court found the evidentiary record insufficient to interpret the commission agreement and resolve the issues, particularly regarding the objective surrounding circumstances and the impact of subsequent conduct.

Consequently, both Homelife's motion for summary judgment and 250's request for summary judgment dismissing the action were denied, necessitating a trial for a fair and just determination.

The defendants brought motions to dismiss the plaintiff's action for delay and for breach of a prior consent order.

The court declined to enforce the consent order's limitation on opposition, finding it would cause a clear injustice to the plaintiff due to counsel's failures.

However, the court found inordinate and inexcusable delay by the plaintiff's counsel over a period of six years, which created a substantial risk that a fair trial would no longer be possible.

The plaintiff failed to rebut the presumption of prejudice arising from the lengthy delay and the age of the underlying transactions (15-20 years old).

Consequently, the action was dismissed for delay.

The self-represented plaintiff abandoned her motion for documentary production shortly before it was scheduled to be heard.

The defendants sought costs of the abandoned motion on a full indemnity basis, citing the plaintiff's conduct and previous abandoned motions.

The court awarded costs to the defendants on a partial indemnity basis, noting that while costs were justified under Rule 37.09(3), the plaintiff's self-represented status and health issues mitigated against an extraordinary costs sanction.

Costs were fixed at $3,500 for one defendant and $2,500 for the other.

The defendant Crown brought a motion for summary judgment to dismiss the plaintiff's action for failing to comply with the 60-day notice requirement under the Proceedings Against the Crown Act.

The plaintiff, an inmate who was assaulted by another inmate, argued that incident reports and statements given at the time of the assault constituted sufficient notice.

The court rejected this argument, finding that the initial reports contained no element of complaint against the Crown.

The action was commenced less than 60 days after formal written notice was provided by the plaintiff's counsel, rendering the action a nullity.

The motion for summary judgment was granted and the action was dismissed.

The defendants moved for summary judgment to dismiss the plaintiff's subrogated action, arguing it was statute-barred under the Limitations Act, 2002, having been commenced more than two years after a fire and explosion.

The plaintiff, through its insurer Intact, contended that the claim was not discovered until the Ontario Fire Marshal's report identified the cause as arson.

The court found Intact's evidence regarding its due diligence in investigating the claim to be significantly lacking, relying on hearsay.

Despite the evidentiary deficiencies, the court, applying the enhanced powers under Rule 20, ordered a mini-trial to determine the issue of Intact's reasonable diligence in discovering the claim, emphasizing the need for a fair and just adjudication and the unique circumstances of pending official investigations.

The plaintiff moved to set aside the registrar’s automatic dismissal of an action alleging misappropriation of investment funds and to transfer the place of trial from Toronto to St. Catharines.

The dismissal was set aside on consent, as the motion had been brought before the dismissal order was issued and procedural steps had continued.

Applying Rule 13.1.02(2)(b) of the Rules of Civil Procedure, the court weighed convenience, trial scheduling, and access to justice considerations.

Despite several defendants and counsel being located in Toronto, the court found the plaintiff’s health issues and limited financial means were significant factors favouring transfer.

The action was therefore ordered transferred to St. Catharines in the Central South judicial district.