David Contant

The applicant sought statutory accident benefits for occupational therapy services following a motor vehicle accident.

The matter was scheduled for a written hearing, but neither party filed submissions.

The parties confirmed via email that the matter had settled, but the applicant failed to file a Notice of Withdrawal.

Proceeding under s. 7(2) of the Statutory Powers Procedure Act, the adjudicator dismissed the application because the applicant failed to meet the burden of demonstrating entitlement to the benefits.

The plaintiffs brought a motion for summary judgment seeking damages from the defendant for breach of an agreement of purchase and sale for residential property.

The defendant failed to close the transaction due to inability to secure financing.

The defendant admitted breach but disputed the quantum of damages and alleged the plaintiffs failed to mitigate their losses.

The court granted summary judgment, finding the plaintiffs acted reasonably in mitigating damages and assessing damages based on the actual resale date.

The plaintiff, Clifton Blake Capital Corp., brought a motion for summary judgment to recover a $164,000 commitment fee from 10972827 Canada Inc. (109 Canada) following the non-completion of an $8.2 million loan transaction.

The plaintiff argued that 109 Canada unilaterally terminated the agreement, while the defendants claimed anticipatory breach by the plaintiff.

The court found that 109 Canada terminated the transaction and that the plaintiff was ready, willing, and able to close.

Judgment was granted against 109 Canada for the commitment fee, adjusted for deposits.

The action against the personal and corporate guarantors was dismissed, as their guarantee was found to be conditional on the loan being advanced, which did not occur.

The defendants' counterclaim for damages related to obtaining new financing was also dismissed.

The moving parties brought a motion for leave to appeal an order dated November 21, 2023.

The Divisional Court dismissed the motion for leave to appeal without costs.

This decision addresses the costs arising from a trial where the plaintiffs were largely successful in their claim on a promissory note and in defending against most set-off claims and a counterclaim.

The plaintiffs were awarded $256,332.07 (including pre-judgment interest) and had beaten their formal Rule 49 offer to settle.

The court considered the principles of indemnity, promotion of settlement, proportionality, and reasonableness under Rule 57.

Despite the defendants' arguments for a lower award, the court fixed the plaintiffs' costs at $100,000, inclusive of HST and disbursements, applying partial indemnity before the offer and substantial indemnity after.

The defendant brought a motion under the Not-for-Profit Corporations Act, 2010 to overturn the election of the board of directors of the plaintiff church.

The election took place after a physical altercation broke out at the meeting, causing several members to leave for medical attention.

The court found that the defendant was entitled to challenge the election by way of a motion under s. 31(1) of the Act.

The court held that the church failed to prove the election complied with its by-laws, as there was no evidence of the total membership or the number of members present.

The motion was granted, the election was declared invalid, and a new election was ordered.

The plaintiffs sold a construction business to the defendants, with a portion of the purchase price secured by a vendor take back promissory note.

The defendants refused to pay the note, claiming set-offs for intercompany debt, retained bank balances, and a bookkeeping error that overstated accounts receivable.

The court held that the purchase price was fixed and not subject to adjustment for the intercompany debt, and that the bookkeeping error did not constitute a breach of warranty.

However, the court allowed a set-off for the retained bank balance, which the plaintiffs conceded should have been transferred on closing, reducing the amount owing on the promissory note.

The applicant sought an order for the sale of a jointly-owned property and 50% of the proceeds.

The respondent brought a cross-application seeking a constructive trust, arguing for an equitable division based on contributions since separation.

The court granted the sale, finding no oppression, and imposed a constructive trust, awarding the applicant 35% and the respondent 65% of the property's value.

This division balanced the respondent's sole mortgage payments post-separation against the applicant's continued legal interest and co-signing of mortgage renewals.

The specific method of disposition (partition or sale) and costs were deferred for further submissions.

The applicant sought a prescriptive easement over a portion of a shared driveway.

The respondents consented to an easement over the middle and back portions but disputed the "front piece." The court found the applicant failed to establish the requisite continuous or permanent use of the front piece prior to the Land Titles transfer in 1996, due to the presence of a concrete retaining wall.

Furthermore, the court determined that an easement over the front piece was not reasonably necessary for the better enjoyment of the dominant tenement, as the alleged use (getting in and out of cars) was merely a personal convenience.

The application for the front piece was dismissed, while the consented easement for the middle and back portions was granted.

Costs were awarded to the respondents on a partial indemnity basis.

Tarion Warranty Corporation brought a motion to add the builder, Greystone Village Inc., as a party to the homeowners' appeal regarding denied warranty claims under the Ontario New Home Warranties Plan Act.

Tarion argued that Greystone had a significant interest because it might be liable to indemnify Tarion if the appeal succeeded.

The Tribunal dismissed the motion, finding that the builder's potential future liability for indemnification did not constitute a significant interest in the warranty appeal itself, as the builder would maintain its right to defend any subsequent indemnification claim.

The plaintiffs sought costs for a motion to strike the defendants' affidavits, which resulted in mixed success as the court instead provided directions for examinations to proceed by video conference due to the COVID-19 pandemic.

The court declined to award costs to either party for that motion, noting both sides acted in good faith in a novel situation.

The plaintiffs were awarded $300 in costs for a separate motion that the defendants had abandoned.

The plaintiffs brought a motion to strike the defendants' affidavits and motion record filed in support of a motion to set aside a default judgment.

The plaintiffs argued the affidavits should be struck because the defendants refused to attend in-person cross-examinations, citing COVID-19 health concerns.

The plaintiffs also argued the motion should be struck because it was brought by counsel retained by the former lawyer's insurer.

The court dismissed the plaintiffs' motion, finding the elderly defendants had a legitimate health concern justifying video conference examinations, and that counsel had standing to act on their behalf.

The applicant mortgagor defaulted on its mortgage and the respondent mortgagee issued a Notice of Sale.

The applicant brought an urgent application seeking to set aside the Notice of Sale, arguing it contained errors regarding the principal amount, property description, and was unsigned, and sought an injunction to stop the pending sale.

The court dismissed the application, finding that under a standard of commercial reasonableness, the alleged errors did not cause prejudice or confusion to the applicant, who was aware of the property and the default.

The court also declined to grant an injunction for an alleged improvident realization, noting it was not ancillary relief and would require a trial.

The plaintiff brought a motion for default judgment seeking damages for wrongful dismissal after the defendant failed to deliver a statement of defence.

The plaintiff, a 60-year-old office manager with 12 years of service, was terminated for alleged cause, which he denied.

The court found the plaintiff was terminated without cause and awarded 24 months' salary in lieu of notice, plus vacation pay and benefits, totaling $157,645.

The court also ordered the defendant to amend the plaintiff's Record of Employment to reflect dismissal without cause and awarded substantial indemnity costs.

The defendants brought a motion to compel the plaintiff to provide particulars for allegations in her statement of claim, specifically concerning breach of the duty of good faith and fair dealing.

The court emphasized that while oral discovery can clarify details, allegations of bad faith under Rule 25.06(8) require "full particulars" to enable the defendants to plead and to limit discovery issues.

The court also clarified that a supporting affidavit from the defendant is not strictly required when the plaintiff's allegations are so general that particulars are clearly necessary.

The motion was substantially granted, requiring the plaintiff to provide specific particulars regarding mismanagement, toxic work environment, detrimental consequences, bad faith, and reputational damage.

The appellant appealed a Small Claims Court decision dismissing his claim against his insurer and a remediation contractor for allegedly defective flooring installation following a basement flood.

The appellant argued the trial judge failed to properly assist him as a self-represented litigant, erred in taking a view of the property, improperly rejected evidence, and erred in finding a claim regarding a vapour barrier was statute-barred.

The Divisional Court dismissed the appeal, finding the trial judge properly accommodated the appellant without assuming the role of counsel, had the authority to take a view, appropriately exercised her discretion regarding evidence, and correctly applied the limitation period.

Costs of the appeal were awarded to the respondents on a partial indemnity basis.

The appellant's appeal of an arbitrator's order regarding income replacement benefits was previously dismissed.

The respondent insurer sought $4,611.35 for its expenses of the appeal.

The Director's Delegate found the respondent was entitled to its expenses based on its complete success, rejecting the appellant's argument that the unique history of the dispute warranted parties bearing their own expenses.

The Delegate found the claimed amount excessive and fixed the respondent's appeal expenses at $3,500 inclusive of disbursements and HST.

Following an arbitration where the applicant's claims for statutory accident benefits were dismissed, the insurer requested an expense hearing to determine the quantum of costs payable by the applicant.

The insurer claimed $12,714.78 in fees and disbursements.

The arbitrator considered the criteria under Rule 75.2 of the Dispute Resolution Practice Code, noting the insurer's 100% success and an unaccepted Rule 76 offer to settle.

Applying the principle of fairness and recognizing the consumer protection nature of the legislation, the arbitrator applied a 50% discount to the insurer's fees and disallowed certain disbursements.

The applicant was ordered to pay $5,634.95 in total expenses.

The appellant appealed an Arbitrator's decision denying him further income replacement benefits (IRBs) on the basis that his post-accident income from self-employment reduced his entitlement.

The appellant argued the Arbitrator erred in finding he was self-employed and in attributing 50% of the business's post-accident profit to him.

The Director's Delegate dismissed the appeal, finding no error of law.

The Arbitrator's findings of fact were supported by ample evidence, including the appellant's tax returns, and the Arbitrator correctly applied the accounting principle of consistency to calculate the post-accident income.

The Plaintiffs moved to strike portions of the Defendant's Statement of Defence in a defamation action, arguing that certain allegations regarding the Plaintiffs' organizational governance were irrelevant.

The Defendant cross-moved for a further affidavit of documents and leave to amend his Statement of Defence, asserting the allegations provided context for his defence of justification and qualified privilege.

The court granted the motions in part, striking specific paragraphs detailing the Defendant's complaints against the Plaintiffs' national office as irrelevant to the defamation claim's core issues, but allowing other amendments and requiring the Plaintiffs to provide a further affidavit of documents.

The court emphasized that while the context of conflict was relevant for reprisal allegations, the veracity of specific governance complaints was not.