Brent Kenneth Harasym

The owners of a residential property brought a motion to declare a construction lien expired and to vacate its registration.

The general contractor had registered a lien for $201,356, claiming the last day of work was August 15, 2019.

The court found that the original renovation contract was terminated on June 16, 2019, and replaced with a new oral agreement.

The court further determined that the contractor abandoned the work under the new agreement on August 7, 2019.

Because the lien was registered more than 60 days after the abandonment, it had expired.

The motion was granted and the lien was ordered vacated.

Following an unsuccessful motion for leave to appeal, the responding parties sought costs.

Tweed Farms Inc. sought partial indemnity costs of $36,701.06, arguing the moving party's unreasonable positions and the expedited nature of the proceeding increased costs.

The moving party argued the amounts were excessive.

The court awarded Tweed Farms Inc. $25,875 and 2470689 Ontario Inc. $5,940, finding these amounts reasonable and proportionate.

This endorsement addresses the costs arising from an unsuccessful motion for leave to appeal brought by The Corporation of the Town of Niagara-on-the-Lake (NOTL).

The responding parties, Tweed Farms Inc. and 2470689 Ontario Inc., sought costs.

Tweed Farms claimed increased costs due to NOTL's abandoned positions, the expedited nature of the motion, and challenges related to virtual hearings during COVID-19.

NOTL argued the claimed amounts were excessive.

The court applied principles of proportionality and reasonable expectations, adjusting counsel rates and acknowledging the impact of NOTL's litigation conduct.

The court awarded Tweed Farms Inc. $25,875 and 2470689 Ontario Inc. $5,940, both on a partial indemnity basis.

The Town of Niagara-on-the-Lake sought leave to appeal an interlocutory procedural order of the Local Planning Appeal Tribunal (LPAT) regarding appeals of an interim control by-law restricting cannabis-related land uses.

The Divisional Court dismissed the motion for leave to appeal as premature.

The court held that there were no exceptional or extraordinary circumstances to justify departing from the general rule against fragmenting administrative tribunal proceedings by hearing appeals from interlocutory decisions.

The applicants brought a motion to compel an expert witness, retained by the respondent SORE, to answer questions refused during cross-examination on his affidavit.

The underlying application sought to quash municipal instruments authorizing Notices of Intention to Designate the applicants' property under the Ontario Heritage Act.

The refused questions related to statements the expert made alleging the applicants engaged in 'demolition by neglect'.

The court granted the motion, finding the questions had a semblance of relevance to the issues in the application and the credibility of the expert's evidence, and did not constitute an abuse of process.

The appellants appealed an order issued by the Town of Niagara-on-the-Lake under s. 100.1 of the Environmental Protection Act requiring them to pay $207,477.88 for remedial work related to a spill.

The Tribunal held a pre-hearing conference by telephone.

The Tribunal ordered the parties to exchange relevant documents by specified dates and directed them to advise if they wish to pursue Tribunal-assisted mediation.

The appellant, Julie Lawrence, appealed the order of the motion judge regarding the disposition of her late father's estate.

The central issue was whether a $50,000 TD line of credit taken out prior to the deceased's marriage to the respondent (the estate trustee and second wife) was a debt of the estate or secured against the matrimonial home.

The motion judge found the estate liable for the debt.

The appellant also alleged the motion judge demonstrated a reasonable apprehension of bias and improperly refused an adjournment.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the factual findings, no reasonable apprehension of bias, and no improper exercise of discretion regarding the adjournment or costs award.

The applicants, William Grantmyre and Rivard's Sawmill Builders' Supply Co. Limited, sought an interim injunction to restrain the Bank of Nova Scotia from selling a property under power of sale.

Grantmyre, who acquired title to the property for nominal consideration after the mortgage default and notice of sale, argued he should have received notice of the mortgage enforcement proceedings.

The court dismissed the motion, finding that Grantmyre failed to establish a serious question to be tried, irreparable harm, or that the balance of convenience favored granting the injunction.

The court also raised concerns about Grantmyre's credibility and found his transfer of title was an attempt to evade the mortgage action.

This application concerned the interpretation of a commercial lease following a fire at the leased premises, a bar and restaurant.

The applicant tenant sought a declaration that the respondent landlord was responsible for repairing fire and water damage to the walls, ceilings, and flooring, and for abating rent until repairs were complete, pursuant to Article 9.03 of the lease.

The landlord argued the damage was minor, its repair obligations were limited, and the tenant's subsequent conduct supported its interpretation.

The court found that the premises were "not fit for occupancy" or "unsafe to use or occupy" due to accelerant odour, inoperative sprinklers, and fire/water damage, triggering Article 9.03.

The court rejected the landlord's narrow interpretation of its repair obligations and its estoppel by convention argument, declaring the landlord responsible for full repairs to a comparable pre-fire state and rent abatement until completion.

The Town of Pelham, as the successful applicant in a prior application, sought costs against Fonthill Gardens Inc. The respondent argued for no costs, claiming the Town's success was incomplete as the judgment did not fully clear title for a third-party sale.

The court awarded costs to the Town on a partial indemnity basis, but with a downward adjustment to $14,000, acknowledging the Town's less than complete success on the application's practical outcome.

The applicant moved for costs following a successful motion for directions regarding her late husband's estate.

She sought full indemnity costs of $47,000 or substantial indemnity costs of $42,000, while the respondents argued for partial indemnity.

The court noted the respondents irresponsibly pursued an unmeritorious claim, wasting estate assets.

The court awarded the applicant generous partial indemnity costs fixed at $35,000, payable jointly and severally by the respondents.

The applicant municipality sought a declaration that the respondent developer did not hold an option to purchase a block of municipal land and an order deleting a Notice of Option to Purchase from title.

The court found that the respondent's purchase right was a personal right akin to a right of first refusal, not an equitable interest in land, because the municipality retained the right to determine if it required the land for its own purposes.

Although the respondent's interest was capable of being registered on title under the Land Titles Act, the specific Notice of Option to Purchase was ordered deleted because it gave notice of an interest the respondent did not possess.

The applicant, widow of the deceased, sought directions under Rule 75.06 regarding the estate, including payment of a debt to TD Bank and issuance of a certificate of appointment as executor.

The respondents, children from the deceased's first marriage, objected to the appointment and resisted debt payment, arguing the debt was secured against the matrimonial home now solely owned by the applicant.

The court ordered the TD Bank debt paid from the estate, granted the certificate of appointment to the applicant, and awarded costs against the respondents for an abandoned motion and for unreasonably delaying debt payments, finding their objections lacked merit.

The Conservation Review Board held a pre-hearing conference regarding objections to Notices of Intention to Designate four properties.

The community group SORE Association sought party status, which the objectors opposed.

The Board granted SORE party status, finding it had a genuine interest, would make a useful contribution, and its addition would not cause prejudice or delay.

The Board also ordered concurrent hearings for the four related proceedings and directed the scheduling of a pre-hearing settlement conference.

The applicant in a human rights proceeding sought to amend his application to include new allegations of discriminatory comments and text messages regarding his disability, which he claimed to have discovered after filing the initial application.

The respondent opposed the amendment, arguing the new allegations were substantial, late, and untimely.

The Tribunal granted the request to amend, noting that evidence of untimely allegations may be admissible as background context, and left the determination of whether the new allegations constituted separate, timely incidents of discrimination to the adjudicator hearing the merits.

The employer appealed a Small Claims Court decision finding that it had wrongfully dismissed the respondent employee.

The central issue at trial was whether the employee resigned or was terminated following an investigation into missing vending machine funds.

The appeal court found that the trial judge failed to make necessary credibility findings regarding conflicting witness testimony and improperly relied on a modified Record of Employment from Service Canada as a 'tie-breaker' without proper evidentiary foundation.

The appeal was allowed and a new trial ordered.

The employer appealed a Small Claims Court judgment that found the employee was wrongfully dismissed.

The trial judge concluded the employee was terminated without cause, not resigned, relying heavily on a Service Canada Record of Employment (ROE) indicating "shortage of work." The appellate court found that the trial judge failed to make specific credibility findings regarding conflicting oral evidence about the termination meeting and subsequent phone calls.

The trial judge also erred by relying on the second ROE for the truth of its contents without proper authentication or considering contradictory sworn testimony, and by concluding termination based on "shortage of work" which was not the live issue.

The appeal was allowed, and a new trial ordered.

The applicant sought substantial indemnity costs after successfully litigating a right-of-way dispute.

The respondents, through new counsel, argued for lower costs, citing ineffective prior representation and a late concession.

The court awarded the applicant $20,000 in all-inclusive costs, finding that the respondents' conduct, including an adjournment, unhelpful affidavits, and a late major concession, warranted more than partial indemnity.

The court also clarified its earlier order regarding the registration of the court orders on title at the respondents' expense.

Following a nine-day trial for breach of contract, the court determined costs.

The defendant was awarded damages of $34,730 on his counterclaim, while the plaintiff's claim was determined to be $32,694.

As the defendant was the more successful party, he sought partial indemnity costs.

The court reviewed the parties' offers to settle, finding neither attracted Rule 49.10 consequences.

Applying Rule 57.01(1) and the principle of fixing a fair and reasonable amount, the court awarded the defendant costs fixed at $34,000 all-inclusive.

The applicant requested an adjournment of the scheduled hearing, stating he had been bedridden for eight weeks and was unable to file his hearing documents.

The respondents opposed the request.

The Tribunal denied the adjournment, finding that the applicant failed to establish exceptional circumstances as required by the Tribunal's Practice Direction.

The Tribunal noted that despite the applicant's illness, there remained sufficient time for him to file his documents prior to the hearing, and issued directions for him to do so.