David A. Broad

Two brothers co-owned a family cottage and entered into a co-ownership agreement without legal advice.

When the plaintiff sought to sell his share, a dispute arose over the interpretation and validity of the buy-sell provision.

The plaintiff applied to enforce the provision or alternatively for a sale under the Partition Act, while the defendant applied for rectification of the agreement to match an earlier draft.

The Superior Court of Justice found the buy-sell provision void for uncertainty as it constituted an unenforceable agreement to agree.

The court dismissed the defendant's claim for rectification, finding no evidence of fraud or equivalent conduct.

Ultimately, the court ordered the sale of the property pursuant to the Partition Act and directed the net proceeds to be divided equally.

The plaintiff was struck by an uninsured driver and sought coverage under the uninsured and underinsured provisions of an automobile insurance policy issued to his child's mother.

The insurer denied coverage, arguing the plaintiff did not meet the definition of 'spouse' as the couple had ceased living in a conjugal relationship.

The court applied a holistic approach to the definition of 'spouse' for parents of a child, finding that living under the same roof was not strictly required.

The court concluded that the parties had not formed a settled intention to end their relationship and were living in a conjugal relationship of some permanence at the time of the accident.

The plaintiff was found entitled to coverage under the policy.

The accused applied for a stay of proceedings under s. 24(1) of the Charter, alleging a violation of his s. 11(b) right to be tried within a reasonable time.

The total delay was 31 months and 20 days, exceeding the 30-month presumptive ceiling set in Jordan.

The Crown argued the delay was justified by the exceptional circumstance of the COVID-19 pandemic.

The court agreed, finding the pandemic and its systemic impact constituted a discrete exceptional circumstance that reduced the net delay below the ceiling.

The application was dismissed.

The plaintiff, a personal services corporation, entered into sales and management agreements with the defendant, a U.S. corporation, to manage its Canadian subsidiary.

The plaintiff's compensation was based on the subsidiary's net profit, calculated in accordance with U.S. GAAP.

The plaintiff sued for breach of contract, alleging the defendant improperly allocated corporate overhead costs to the Canadian subsidiary, thereby artificially reducing the net profit and the plaintiff's compensation.

The court dismissed the action, finding the plaintiff failed to prove on a balance of probabilities that the defendant's allocation of corporate overhead costs was not in accordance with U.S. GAAP.

The court also dismissed additional claims for unpaid invoices and wrongful termination due to lack of evidence.

The Estate Trustee applied for advice and direction regarding the distribution of a lapsed residuary gift in the testator's will.

The will did not provide a gift-over for a share left to the testator's sister, who predeceased her.

The court applied the 'armchair rule' to determine the testator's intention, finding that she intended to benefit her named residuary beneficiaries rather than distant relatives on an intestacy.

The court ordered the lapsed share to be paid to the surviving residuary beneficiary.

The applicant sought leave to issue a Certificate of Pending Litigation (CPL) to halt power of sale proceedings on her home.

She alleged that a mortgage registered against her property was obtained by fraud when an unidentified individual approached her at her home and induced her to sign documents while she was intoxicated and visually impaired.

The respondents argued that a mortgagor cannot obtain a CPL to stop a power of sale without offering to redeem the mortgage.

The court held that where fraud goes to the very formation and enforceability of the mortgage, the rigid rule requiring redemption does not apply.

Balancing the equities, the court granted the CPL to protect the applicant from potential homelessness pending a determination on the merits.

Following a trial under the Simplified Procedure regarding a construction contract dispute, the defendants sought costs on a substantial indemnity basis.

The court found that while the defendants were the more successful parties, their recovery was mitigated by their lack of success on certain counterclaims and their unwavering position that the contract was fixed-price.

The court also found that neither party's offer to settle met the strict requirements of Rule 49.10.

Applying the principle of proportionality, the court awarded the defendants costs fixed at $47,382.86.

The plaintiffs were unsuccessful on a motion to amend their Statement of Claim.

The defendants sought partial indemnity costs of $10,000, while the plaintiffs argued for a range of $5,000 to $6,000, citing a power imbalance and limited financial means.

The court rejected the plaintiffs' arguments regarding power imbalance and the necessity of matching time spent, finding the defendants' time investment reasonable.

Applying principles of indemnity, reasonable expectation, and proportionality, the court awarded the defendants costs fixed at $7,500 inclusive, payable within 30 days.

The plaintiff sought costs of a motion necessitated by the defendant's failure to pay a prior costs order.

The defendant had stopped payment on a cheque and indicated no intention to pay voluntarily.

The court found the defendant's conduct reprehensible and awarded the plaintiff costs of the motion on a substantial indemnity basis in the amount of $14,105.44.

Following a successful motion for summary judgment, the plaintiff sought full indemnity costs of $101,516.82 against the self-represented defendant, relying on a contractual guarantee and the defendant's aggressive litigation conduct.

The defendant argued the amount was disproportionate and sought to limit costs to $26,376.91 on a partial indemnity basis.

The court found the defendant's conduct, while aggressive, was not reprehensible, scandalous, or outrageous, and the guarantee did not specify the scale of costs.

The court awarded the plaintiff partial indemnity costs fixed at $68,527.11.

The plaintiff sought costs of $14,946.31 on a partial indemnity basis following a successful wrongful dismissal action.

The defendant argued the costs were excessive, asserting the net recovery fell within the Small Claims Court jurisdiction and noting the plaintiff's failure on the moral damages claim.

The court rejected the defendant's calculation involving statutory deductions, finding the claim was not within Small Claims Court jurisdiction.

Taking into account the plaintiff's lack of success on moral damages, proportionality, and indemnification, the court fixed costs at $10,000 inclusive.

The plaintiff contractor sued the defendant homeowners for the unpaid balance of a custom home construction contract.

The defendants counterclaimed for construction deficiencies and intentional infliction of mental distress.

The court found the contract was a 'time and material' contract, not a fixed price contract, but reduced the plaintiff's claim due to a failure to provide proper accounting, awarding $44,299.51 on a quantum meruit basis.

The court also found the plaintiff breached the contract regarding the concrete basement floor and stairs, awarding the defendants $88,333 to remedy the defects.

The claims for delay and mental distress were dismissed.

The plaintiffs, a minor hockey coach and a manager/trainer, were suspended by the defendant hockey associations.

They brought an action and later moved to amend their Statement of Claim to add allegations of breach of natural justice, defamation, intentional infliction of mental distress, and breach of contract.

The court dismissed the motion, finding that the proposed amendments failed to disclose reasonable causes of action.

Specifically, breach of natural justice is not a freestanding cause of action, the defamation claims lacked required particulars, the mental distress claims failed to plead flagrant conduct or specific intent, and the breach of contract claim lacked material facts.

The moving party husband brought a motion to change a final spousal support order, seeking to terminate his support obligation after retiring early at age 55.

He claimed his retirement was involuntary due to physical limitations from his physically demanding job, though he provided no corroborating medical evidence.

The responding party wife opposed the motion, arguing the retirement was voluntary.

The court found the husband's testimony credible and held that his involuntary retirement constituted a material change in circumstances.

The court ordered a reduction in spousal support effective the date of his retirement, based on his reduced pension income.

The offender was convicted of possession for the purpose of trafficking fentanyl, hydromorphone, and oxycodone, as well as possession of a prohibited weapon and proceeds of crime.

The court found that despite Charter breaches during the arrest, the evidence was admissible.

The offender, a youthful first-time offender, was found to be a mid-level trafficker motivated by financial gain, not an addict-trafficker.

Taking into account the harsh conditions of pre-sentence custody during the pandemic, the court imposed a global sentence of 5 years, reduced by enhanced credit for pre-sentence custody.

Following the dismissal of both the plaintiff's action for constructive dismissal and the defendant's counterclaim for breach of restrictive covenants on summary judgment, the parties made written submissions on costs.

The defendant sought substantial indemnity costs based on an offer to settle, while the plaintiff sought partial indemnity costs for defending the counterclaim.

The court found the defendant's offer was an invitation to capitulate rather than a genuine compromise, and ordered that each party bear their own costs.

Following cross-motions regarding child and spousal support, imputing income, and life insurance, the parties made written submissions on costs.

The court found divided success on the issue of the applicant's income for support purposes, but noted the respondent was successful in resisting the imputation of income to her and on the life insurance issue.

Applying principles of proportionality and reasonableness, the court awarded the respondent costs fixed at $5,085.

The parties made written submissions on costs following the respondent's success on the applicant's motion for reunification therapy and the respondent's cross-motion for child support.

The respondent sought full indemnity costs of $6,709.26, while the applicant argued each party should bear their own costs or costs should be fixed at $2,500.

The court applied the principles of proportionality and reasonableness, noting that a tempered approach to costs is appropriate in cases involving decision-making and parenting time.

The court fixed the respondent's costs at $2,945, payable by the applicant within 60 days.

The applicant mother sought costs on a substantial indemnity basis following her successful application to declare the respondent father a vexatious litigant and his unsuccessful motion to extend the time to perfect an appeal.

The mother argued that the father's bad conduct in previous proceedings justified an elevated scale of costs.

The court rejected this argument, holding that conduct in prior proceedings cannot be used to punish a party in the current proceeding.

Costs were awarded to the mother on a partial indemnity basis, fixed at $15,181.07, based on the principles of proportionality and reasonableness.

The plaintiff, a dental hygienist, resigned and sued her former employer for constructive dismissal after her hours were reduced.

The defendant counterclaimed for breach of non-competition and non-solicitation clauses.

On cross-motions for summary judgment, the court dismissed both the action and the counterclaim.

The court found the termination, non-competition, and non-solicitation clauses in the employment contract were unenforceable.

However, the court also found the plaintiff was not constructively dismissed, as the reduction in hours merely reverted her schedule to its historical norm and did not breach an essential term of the contract.