Brian R. Kelly

The appellant towing company appealed a Small Claims Court decision limiting its storage lien against the respondent vehicle owner to 60 days.

The appellant had towed a damaged leased vehicle at the request of police and stored it for over a year without notifying the respondent, who held a registered security interest.

The Divisional Court dismissed the appeal, upholding the trial judge's finding that the appellant was required under s. 4(4) of the Repair and Storage Liens Act to provide written notice within 60 days, and that failure to do so limited the lien to the initial 60-day period.

Mr. Towing Inc. appealed a Small Claims Court judgment that dismissed its action for additional vehicle storage charges against Mercedes-Benz Financial Services Canada Corporation (MBFS).

The trial judge found that Mr. Towing's lien for storage was limited to the initial 60-day period due to its failure to provide written notice to MBFS as required by the Repair and Storage Liens Act (RSLA).

The Divisional Court upheld the trial judge's decision, confirming that Mr. Towing was required to provide notice and that its lien was limited to 60 days of unpaid storage charges, which had already been paid by the driver's insurer.

The appeal was dismissed, and MBFS was awarded costs.

A case management endorsement setting out procedural directions for an upcoming virtual appeal hearing before the Divisional Court.

The court provided instructions on the use of ZOOM technology, dress code, and the electronic filing of documents, including hyperlinked factums and compendiums.

The parties delivered written submissions on costs following a trial regarding child support.

The respondent sought partial indemnity costs of $15,000, while the applicant sought full recovery costs of $39,900.78 or, alternatively, that each party bear their own costs due to divided success.

The court found that no costs should be awarded for the period prior to a March 2018 consent order, as costs were not reserved.

Although the respondent was successful on the threshold issue of child support, the applicant was more settlement-focused and made reasonable offers to settle.

The court concluded that the presumption of costs to the successful party was rebutted and ordered each party to bear their own costs.

The applicant brought a motion to change seeking sole custody and child support.

The parties settled the parenting issues, agreeing to a week-about shared parenting schedule.

The remaining issue was child support, specifically whether the respondent met the 40% threshold under section 9 of the Federal Child Support Guidelines.

The court found that the time the children spent in school should be considered neutral, as both parents shared responsibility for the children during school hours.

Consequently, the respondent met the 40% threshold, and the applicant, having the higher income, was ordered to pay set-off child support and arrears.

An appeal concerning the division of proceeds from the sale of a family residence held as joint tenants by parties in a common law relationship.

The appellant contributed $5,000 to the purchase price while the respondent contributed $116,000.

The trial judge found that the appellant failed to rebut the presumption of resulting trust and that there was no unjust enrichment.

The Court of Appeal upheld the trial judge's decision, finding no basis to interfere with the findings regarding the presumption of resulting trust and the unjust enrichment analysis.

The appellants appealed a trial judgment concerning a business purchase agreement that was terminated before completion.

The trial judge found that a $100,000 deposit paid by the appellant toward a $500,000 purchase price was to be retained by the respondent pursuant to a termination agreement entered into by the parties.

The trial judge found no legal fault on either side and concluded that the parties' intention in the termination agreement was that the deposit remain with the respondent.

The Court of Appeal found no palpable and overriding error in the trial judge's interpretation and dismissed the appeal.

The court issued a costs ruling following successful motions by the applicant.

The applicant was found to be fully successful and entitled to costs.

The respondent's arguments for deductions, including legal fees incurred prior to a specific date and an earlier accepted offer, were considered.

The court awarded costs of $16,293.37 to the applicant, to be deducted from the respondent's share of the matrimonial home equity.

The appellants owned property adjacent to the respondents' property in Fergus, Ontario.

The respondents held an easement over part of the appellants' property providing interior access to the upper floors and roof of their own building.

The respondents sought to renovate their property for commercial and residential use, which included widening a third-floor door frame to create a fire exit and replacing doors to comply with building and fire regulations.

The appellants interfered with the easement and the respondents applied for declaratory and injunctive relief.

The application judge declared the easement valid and ordered the appellants not to interfere with the respondents' rights.

The appellants appealed, arguing the renovations impermissibly changed the use of the easement and that ancillary rights were void under the rule against perpetuities.

The Court of Appeal dismissed the appeal.

This addendum to a prior judgment finalized the calculation of retroactive spousal support, child support, and post-separation expense credits, resulting in a net payment to the applicant.

The court also determined the issue of costs, finding the applicant entitled to costs due to her success on substantive issues and reasonable attempts to settle.

An award of $90,000 in costs, inclusive of HST and disbursements, was ordered to be paid to the applicant from the respondent's share of the matrimonial home proceeds.

The Applicant sought summary judgment to enforce an offer to settle made by the Respondent, which the Respondent's new counsel attempted to repudiate due to non-compliance with subrule 18(4) of the Family Law Rules (lack of the Respondent's personal signature).

The court found that a binding agreement had been formed based on ordinary contract law principles, as there was clear offer, acceptance, and consensus on all essential terms, and the parties had acted in furtherance of the agreement.

The Applicant's motion for summary judgment was granted, validating the settlement, and the original motions for partition and sale and occupation rent were dismissed.

Following a 25-year marriage, the parties proceeded to trial on issues of child and spousal support, income determination, reimbursement of expenses, and occupation rent.

The court imputed the applicant's income at $30,000 due to intentional under-employment and set the respondent's income at $171,398, denying his request to deduct employment expenses due to insufficient evidence.

The applicant was awarded indefinite spousal support of $3,600 per month and child support of $1,453 per month.

The respondent was awarded $16,576 for post-separation expenses, but his claim for occupation rent was dismissed as the circumstances were not exceptional.

Following a successful trial regarding resulting trust and unjust enrichment of a family residence, the applicant sought costs.

The applicant had delivered an offer to settle that triggered the cost consequences of Rule 18(14) of the Family Law Rules.

The court awarded the applicant the full requested amount of $36,556.92, finding the time spent reasonable and noting no reason to discount the fees.

The moving party (respondent in the main action) brought a pre-trial motion seeking an order that his valuation experts not be disqualified due to a perceived conflict of interest raised by the responding party.

The responding party argued the motion judge lacked jurisdiction to bind the trial judge's discretion on admitting expert evidence.

The court agreed, finding that the trial judge acts as the gatekeeper for admitting evidence and a pre-trial ruling could leave the trial judge in an untenable position if cross-examination revealed a conflict.

The motion was dismissed.

The respondent father sought costs after successfully moving to rescind an ex parte order and obtaining non-supervised access to the children.

The applicant mother had obtained the initial order based on an affidavit that contained non-disclosure and mis-disclosure, which she later admitted during questioning.

Despite these admissions, the mother maintained an intransigent position, forcing the father to incur significant legal fees.

The court found the mother's conduct unreasonable and ordered her to pay $20,000 in all-inclusive costs to the father.

Following the dismissal of the plaintiff's action for well contamination, the court determined costs.

The plaintiff conceded liability for the defendant's partial indemnity costs but disputed liability for the third parties' costs.

Applying the principles from Guarantee Co. of North America, the court found it fair to order the plaintiff to pay the successful third parties' costs, as the main issue litigated was between the plaintiff and the third party who applied the biosolids.

The court fixed total costs at $70,000, apportioned among the defendant and two third parties, noting that the costs claimed were disproportionate to the modest nature of the case and criticizing the parties' failure to make reasonable settlement offers.

The applicant mother initially obtained an ex parte order granting her sole custody, exclusive possession of the matrimonial home, and a restraining order against the respondent father.

The court vacated the ex parte order after finding the applicant failed to disclose material facts, including her own recent initiation of intimacy and her admission that she sought supervised access merely because the respondent changed his work schedule.

On the interim motion, the court denied the applicant's request for a restraining order and supervised access, finding the status quo was shared parenting.

The court ordered an alternating 2-2-3 residential schedule.

The parties settled their family law dispute regarding spousal support and property on the eve of trial, leaving only the issue of costs to be determined.

The respondent sought costs based on an early offer to settle, while the applicant argued for no costs or a nominal amount due to the respondent's late disclosure of her job loss.

The court found that both parties had withheld important productions and acted unreasonably at times.

Applying the principle of proportionality, the court ordered the applicant to pay $5,000 in costs to the respondent.

The plaintiff claimed her water well was contaminated by municipal sewage waste (biosolids) applied to her neighbor's farmland, alleging nuisance and negligence.

The defendant brought a third-party claim against the farm lessee and the biosolids applicator.

The court dismissed the plaintiff's action, finding that she failed to prove, on a balance of probabilities, that the biosolids application caused the well contamination.

Crucially, no E. coli., the primary indicator of sewage contamination, was detected in any water samples, despite the presence of other bacteria commonly found in the natural environment.

The court also dismissed the third-party action.

The appellant appealed a sentence imposed for failing to comply with a Property Standards Order issued under the Building Code Act.

The appellant was convicted of non-compliance with an order requiring repairs to a residential property by August 15, 2012.

The sentencing judge imposed a $2,000 fine and six-month probation order.

The appellant challenged the sentence on grounds that evidence from her husband was improperly excluded and that certain factual findings were erroneous.

The appellate court upheld the sentence, finding it fit and proportionate within the acceptable range for the offence.