Brent Stephen John Cumming

Following reasons for judgment in two related applications regarding a commercial lease, the successful parties, The Tire Pit Inc. and Michael Goldlist, sought costs on a substantial indemnity basis.

The court found that the conduct of the unsuccessful parties did not rise to the egregious level required for substantial indemnity costs.

The court awarded partial indemnity costs, ordering Augend and Charles Bulmer jointly and severally to pay $36,000 to The Tire Pit Inc., and Augend to pay $31,000 to Michael Goldlist.

The appellant appealed a summary judgment decision requiring him to return a $50,000 deposit to the respondent in a real estate transaction.

The respondent had refused to close the purchase after discovering a second TransCanada Pipeline easement running under the pool, cabana, and patio that had not been disclosed in the Agreement of Purchase and Sale, along with undisclosed litigation between the appellant and the pipeline company.

The Court of Appeal upheld the summary judgment, finding that the appellant breached the APS by failing to convey title free from undisclosed restrictions and by attempting to require the respondent to sign an agreement the appellant had contracted to execute.

The plaintiffs sought summary judgment for damages and release of a deposit following a failed real estate transaction, while the defendant counterclaimed for the deposit's return.

The transaction failed because the defendant discovered undisclosed TransCanada Pipeline (TCPL) easements, including one under the pool and cabana, which allowed TCPL to demand their removal and was subject to ongoing litigation.

The court found that the plaintiffs failed to disclose material information regarding the easements and related litigation, which materially affected the property's use and violated the Agreement of Purchase and Sale's title provisions.

Summary judgment was granted in favour of the defendant, ordering the return of the deposit.

The Estate Trustees applied to pass their accounts for the Estate of Ingrid Loveman.

A beneficiary objected, alleging the Trustees breached their fiduciary duties by delaying the sale of the estate's primary asset (a house) to one of the Trustees, failing to account for rental income, and improperly charging the estate for litigation and carrying costs.

The court found that the purchasing Trustee preferred his own interests by delaying the house purchase, which caused unnecessary carrying costs and exposed the estate to a dependant's relief claim.

The court ordered the Trustees to personally bear the litigation costs and the carrying costs incurred after a reasonable closing date.

The Trustees were also ordered to account for uncollected rental income.

Trustee compensation was reduced to 1.75% due to these administrative failures.

The appellant landlord appealed the dismissal of its action for unpaid rent against the respondent commercial tenants.

The trial judge had dismissed the action on the basis that the landlord forfeited its right to sue for rent by re-entering the premises before the 15-day statutory period expired under the Commercial Tenancies Act.

The Court of Appeal allowed the appeal in part, finding that the trial judge erred by failing to consider whether the premises had been abandoned, which would allow immediate re-entry without prejudicing the claim for rent.

A trial of an issue was ordered to determine the application of the Act, including the issue of abandonment.

The plaintiffs sought declaratory relief confirming that they retained a valid and subsisting mortgage after a loan secured by assignment of that mortgage had been sold to a third party.

The court found that the requested declaration would affect the rights of a mortgagor that was not a party to the proceeding, making such relief inappropriate.

The court also concluded that no viable cause of action existed between the plaintiffs and the remaining defendant.

The defendant’s counterclaim seeking repayment of the loan more than a decade after default was barred by the Limitations Act due to the long delay and absence of any demand.

Both the main action and the counterclaim were dismissed.

The Ontario College of Teachers brought disciplinary proceedings against a member who had been convicted of multiple historical sexual offences against young males between 1973 and 1974.

The member pleaded guilty to the allegations of professional misconduct.

The Discipline Committee accepted the joint submission on penalty, ordering the immediate revocation of the member's teaching certificate.

The Committee also ordered that the decision be published with the member's initials only, noting that the member had not reoffended since 1974, had sought psychiatric treatment, and had isolated himself to protect others, meaning the public interest did not require publication of his full name.

The applicant claimed death benefits following her husband's fatal car accident.

The dispute centered on whether an ex gratia payment and a sick leave payout received by the deceased upon his retirement, within the 156 weeks preceding the accident, should be included as income for calculating the death benefit.

The arbitrator held that the purely discretionary ex gratia payment was income earned upon retirement and thus included in the calculation.

However, the sick leave payout accrued steadily throughout the deceased's employment and was not included as income within the 156-week period.