David G. Stinson

The applicant applied for an order requiring the respondents to remove encroachments from a three-foot strip of land owned by the applicant but subject to a right-of-way and restrictive covenants in favour of the respondents.

The applicant had successfully applied to the land registrar to delete the restrictive covenants pursuant to s. 119(9) of the Land Titles Act, which deems covenants without a fixed expiry date to expire after 40 years.

The respondents argued the original deed's use of the word 'forever' constituted a fixed period.

The Superior Court held that 'forever' indicated the covenants were perpetual and lacked a fixed expiry date, meaning they were caught by s. 119(9) and deemed expired 40 years after registration.

The application was allowed, and the respondents were ordered to remove the encroachments.

The plaintiffs brought a motion mid-trial to withdraw admissions made in pleadings, responses to requests to admit, and an agreed statement of facts, and sought leave to rely on new documents, after discovering a significant factual mistake regarding the legal description of lands.

The defendants opposed the motion and brought a cross-motion for a mistrial.

The parties ultimately resolved their motions by consent order, which allowed the withdrawal of inadvertent admissions and declared a mistrial.

The presiding judge recused himself from hearing the new trial due to having formed views on the evidence.

Directions were provided for the future course of the proceedings, including efforts to agree on evidence use and a prompt new trial.

The plaintiff landlord sued its insurer after the insurer denied a claim under an employee dishonesty policy.

The plaintiff alleged its property manager stole rent money and misused a corporate credit card.

The insurer denied the claim on the basis that the property manager was an independent contractor, not an employee.

The Superior Court of Justice found that the property manager was an employee based on the level of control and the nature of the relationship.

The court awarded the plaintiff $58,761 for the stolen rent but dismissed the credit card claim, finding it was a debtor-creditor arrangement.

The court also dismissed the plaintiff's claims for bad faith and punitive damages, finding the insurer handled the complex claim fairly.

Following a successful appeal of an arbitration award, the appellants sought costs for the appeal and two preliminary motions.

The respondents argued success was divided and disputed the scale and quantum.

The court found the appellants were entirely successful and entitled to costs for the appeal and the preliminary motions, which were necessitated by the respondents' ill-advised motion to quash.

The court declined to award substantial indemnity costs, finding no reprehensible conduct, and fixed costs on a partial indemnity scale at $54,284.74.

The plaintiff, a long-serving senior accounting manager, alleged constructive dismissal after a merger-driven reorganization removed core payroll, budgeting, and accounts payable responsibilities and left her with an uncertain role.

Applying the Supreme Court of Canada’s constructive dismissal framework, the court held that the employer had unilaterally and substantially altered essential terms of employment and had also, viewed cumulatively, evinced an intention no longer to be bound by the contract.

On damages, the court held that ESA termination and severance entitlements were payable and that mitigation income earned during the statutory entitlement period could not be deducted from the common law award.

The court also awarded relocation-related mitigation expenses, including sale, purchase, moving, and transitional costs, in the amount of $45,010.32, together with pre-judgment interest.

The appellants appealed an arbitration award under s. 45 of the Arbitration Act, 1991, arguing the arbitrator exceeded his jurisdiction by directing the boards of two corporate parties to determine the profits of a non-party US corporation.

The Superior Court of Justice agreed, finding that an arbitrator cannot bind or govern the affairs of a non-party.

The appeal was allowed in part, and the specific paragraph of the formal judgment affecting the non-party was set aside and remitted to the arbitrator with directions.

The applicant tenants exercised an option to purchase their rented home, but the respondent landlord refused to complete the sale, alleging the tenants breached the lease by installing an outdoor cat enclosure without written consent.

The court found that the cat enclosure did not constitute a 'renovation' under the lease, meaning no breach occurred.

Alternatively, the court held that even if a breach had occurred, the tenants were entitled to relief from forfeiture under section 98 of the Courts of Justice Act, as the breach was minor, the tenants acted reasonably, and the loss of the option would be disproportionate to any harm suffered by the landlord.

The application was granted and the landlord was ordered to convey the property.

The moving defendants brought a motion for production of documents relating to two alleged settlements: one between the plaintiff and a co-defendant, and another comprehensive settlement allegedly reached among all parties.

The court dismissed the request for communications between the plaintiff and the co-defendant, as both parties denied reaching a settlement and the communications were protected by settlement privilege.

However, the court granted production of communications purportedly made in furtherance of the alleged comprehensive settlement, applying the exception to settlement privilege that allows disclosure to prove the existence of a disputed settlement.

This endorsement addresses costs following a judgment where the plaintiff was largely successful.

The court awarded substantial indemnity costs to the plaintiff against Mushtaq Raja, Minaj Transport Inc., Maryat Investments Inc., and Direct Ex Logistics Inc. The decision to award substantial indemnity costs was based on Mushtaq Raja's fraudulent conduct prior to and during the litigation, and the defendants' unproven allegations of fraud against the plaintiff.

The court declined to award costs to Munaza Raja and Janish Raja, despite their successful dismissal from the action, due to their minor roles and the lack of separate costs incurred on their behalf.

Specific cost amounts were determined for each paying defendant, with minor adjustments for Maryat Investments Inc. and Direct Ex Logistics Inc.

Three Toronto police officers sued the Attorney General of Ontario for negligence and misfeasance in public office, alleging that Crown Attorneys failed to properly investigate and defend against allegations of police misconduct made by an accused during a criminal trial, causing reputational harm to the officers.

The Attorney General moved to strike the claim under Rule 21.01(1)(b).

The court struck the negligence claim, finding that while a prima facie duty of care might exist, it was negated by policy concerns regarding the diversion of Crown Attorneys from their primary duties and the potential chilling effect on prosecutorial discretion.

However, the court allowed the misfeasance in public office claim to proceed, finding that the plaintiffs had properly pleaded the necessary elements of deliberate and unlawful conduct.

The plaintiff, Darren Noddle, a self-represented litigant in a civil negligence action against his former doctor and the provincial government, brought a motion seeking an order for publicly-funded counsel.

He alleged that a prescribed drug, Aldara, caused him significant harm, including cognitive impairment and vision problems, which affected his ability to represent himself.

The Attorney General opposed the motion, arguing that the plaintiff's Charter rights were not engaged in a civil action and that he failed to meet the established legal tests for publicly-funded counsel or an advance costs award.

The court dismissed the motion, finding that civil actions for personal injury do not engage section 7 Charter rights, and the plaintiff did not satisfy the criteria for an advance costs award, particularly regarding the absence of other realistic funding options and a prima facie meritorious case of public importance.

The applicant, Mr. Su, brought a motion under Rule 59.06(2)(a) to set aside a consent order that dismissed his property claims against the estate of Gab Yi Lam, alleging fraud or newly discovered facts regarding the estate's assets.

The court found that Mr. Su had access to information revealing the lack of estate assets prior to agreeing to the consent order.

Any misleading information about the estate's value was provided after the consent order was made and was subsequently corrected.

The court concluded that Mr. Su failed to prove fraud or demonstrate any after-acquired facts that would warrant setting aside the consent order.

The motion was dismissed.

The defendant Economical Insurance Group brought a motion to dismiss or stay the plaintiff Luciano Molinaro's action due to his repeated non-compliance with court orders and the Rules of Civil Procedure.

The plaintiff, who was self-represented, had failed to provide undertakings, attend mediations and pre-trial conferences, and pay costs.

The court, while acknowledging the plaintiff's self-represented status, emphasized the need for fair process and efficient use of court time.

The action was stayed on terms, vacating the scheduled trial date, with the plaintiff given an opportunity to comply with specific conditions (payment of costs, disclosure of information, undertaking to attend future conferences) to have the stay removed.

Failure to comply by September 30, 2017, would allow the defendant to seek dismissal without notice.

Farmers' Mutual Insurance Company (Lindsay) appealed an arbitration decision that found its commercial umbrella liability policy covered Statutory Accident Benefits Schedule (SABS) benefits for an all-terrain vehicle (ATV) accident.

The court, reviewing for reasonableness, found the arbitrator erred in interpreting the definition of 'automobile' within the Umbrella policy.

However, the court concluded that the ATV was covered under Farmers' standard Ontario Automobile Policy (OAP) via the 'Newly Acquired Automobiles' provision, due to the Umbrella policy's effect on the OAP's prerequisite that the insurer insure all automobiles owned by the insured.

Consequently, Farmers' appeal was dismissed, and the Minister of Finance's cross-appeal was allowed, affirming Farmers as the priority insurer responsible for SABS benefits.

The applicant sought an interlocutory mandatory injunction to lift a Site Alteration Order issued by the respondent, which prohibited the importation of 500,000 m³ of fill for a proposed berm on its property.

The applicant argued the berm constituted landscaping and fell under an exception to the respondent's Fill Control By-law.

The court dismissed the motion, finding the applicant failed to meet the higher standard for a mandatory injunction, did not demonstrate irreparable harm (as it was the author of its own misfortune by proceeding without legal certainty), and the balance of convenience favoured the respondent due to potential environmental damage and remediation costs.

The applicant's undertaking as to damages was also deemed inadequate.

These supplementary reasons for judgment address Maryat Investments Inc.'s cross-claim against Mushtaq Raja for indemnity concerning Arif Hayat's claim.

The court found that the representations, warranties, and indemnity provided by Raja were personal obligations to the purchaser of Maryat's shares, PB 10 Investments Ltd., and not to Maryat itself.

As PB 10 was not a party to the litigation, these obligations could not be enforced in the current proceeding.

Consequently, the cross-claim for indemnity was dismissed.

The defendant, the Attorney General of Ontario, brought a Rule 21 motion to dismiss the plaintiffs' action on the ground that it was barred by a limitation period.

The plaintiffs, police officers, alleged negligence and misfeasance in public office by Crown counsel.

The court, applying the principles from Beardsley v. Ontario Provincial Police, found that the limitation period issue involved legal and factual complexities, including the discoverability of a potentially novel claim, and therefore should not be determined at a preliminary stage before pleadings were closed.

The preliminary question was decided in favour of the plaintiffs, and the motion to dismiss on this ground was denied.

This appeal concerns an arbitrator's decision regarding sanctions for an insurer's improper deflection of a statutory accident benefits (SABs) claim and failure to provide timely notice of dispute.

The Motor Vehicle Accident Claims Fund (MVACF) appealed the arbitrator's decision to impose only costs sanctions on TD Insurance, arguing that TD should be permanently liable for the SABs due to its conduct.

The court upheld the arbitrator's decision, finding it reasonable and within jurisdiction, as existing appellate authority supports that a breach of the "Disputes Between Insurers" regulation does not automatically result in permanent liability, especially when another insurer initiated the dispute process within the required timeframe.

The moving party, a newly established university, brought a motion for summary judgment in its appeal seeking a rebate of sales tax paid on construction.

The Minister of Finance had denied the rebate on the basis that the moving party was a 'university' under the relevant regulation, which excluded universities receiving provincial financial assistance.

The court found that during the rebate period, the moving party's authority to grant degrees came from Ministerial consent rather than an Act of the Assembly.

Therefore, it did not meet the strict statutory definition of a 'university' and was entitled to the rebate.

The defendant, Greg Chew, brought a motion to vary a $50,000 costs award made against the defendants following their unsuccessful motion to disqualify the plaintiff's counsel.

Chew argued that the costs should be apportioned severally, making him liable for only 25%.

The court found it had jurisdiction to amend the order under Rule 59.06(1) because the issue of joint and several liability was not adjudicated in the original endorsement.

Applying the principles from Meady v. Greyhound, the court held that the defendants acted jointly in pursuing the disqualification motion and that no exceptions to the general rule of joint and several liability applied.

The motion to vary was dismissed, and the original order was amended to expressly state that the defendants' liability for costs is joint and several.