David G. Stinson

The defendants brought a motion for summary judgment seeking dismissal of a claim by a warranty administrator to recover amounts paid from a statutory guarantee fund for condominium common element defects.

The motion raised issues of statutory interpretation under the Ontario New Home Warranties Plan Act concerning whether a condominium corporation is entitled to enforce warranty rights relating to common elements.

The court held that the statute deems a condominium corporation to be the owner of common elements for warranty purposes and therefore entitled to enforce such warranties.

Alternatively, the warranty administrator was entitled to pursue recovery through statutory subrogation after paying claims from the guarantee fund.

The defendants’ motion was dismissed and the indemnitor was declared personally liable for any deficiency once the amount is quantified.

Following a trial judgment awarding the plaintiff the return of a $22,000 deposit and dismissing the defendant’s counterclaim, the court addressed costs.

The defendant argued that because the plaintiff’s recovery fell within the monetary jurisdiction of the Small Claims Court, the plaintiff should be denied costs under rule 57.05(1) of the Rules of Civil Procedure.

The court held that denial of costs under rule 57.05(1) is discretionary and not automatic, particularly where the litigation involved complexity and a multi‑day trial.

Considering the defendant’s role in causing the dispute and the complexity of the proceedings, the court exercised its discretion to award costs to the plaintiff.

Applying proportionality and the factors under rule 57.01, the court fixed partial indemnity costs at $27,500.

The defendants brought a Rule 21 motion to strike a claim arising from litigation related to the Patented Medicines (Notice of Compliance) Regulations.

The court adjourned the motion pending the outcome of a related appeal before the Court of Appeal involving the same underlying facts and legal issues.

The judge held that the appellate decision would likely have a significant impact on the issues in the motion, particularly regarding the availability of ancillary remedies in PM(NOC) Regulations litigation.

The adjournment was justified on grounds of judicial economy, efficiency, and the avoidance of potentially duplicative proceedings.

The court concluded that the short delay would not cause real prejudice and any financial impact could be compensated by interest.

Following dismissal of a motion to set aside a long-standing default judgment, the successful responding party sought costs.

The court applied the presumptive loser‑pays principle and found no circumstances justifying departure from it.

Given the underlying allegations of fraud and the moving party’s unsupported allegations of misconduct against the respondent, the court determined the case warranted substantial indemnity costs rather than the usual partial indemnity scale.

The court found the claimed fees and disbursements reasonable under Rule 57.01(1) of the Rules of Civil Procedure and declined to reduce the amount.

Costs were ordered payable by the unsuccessful moving party.

The defendant appealed a master's order dismissing a motion to remove the plaintiff's counsel for an alleged conflict of interest.

The issue was whether conflict rules applicable to law firm partnerships also apply where lawyers practise in a cost‑sharing association but hold themselves out publicly as a single firm.

The court held that where lawyers present themselves to the public as a firm, the same conflict principles apply, including the presumption that confidential information may be shared absent adequate screening mechanisms.

Because the lawyers shared branding, contact information, and facilities without evidence of protective measures or a shared conflicts system, a reasonable observer would perceive an appearance of conflict.

The master erred in relying on conclusory assurances rather than objective safeguards.

The appeal was allowed and the plaintiff’s counsel was removed from the record.

The Public Guardian and Trustee sought appointment as permanent guardian of the person of an incapable adult under the Substitute Decisions Act, 1992.

The incapable person’s daughter opposed the application and sought appointment as guardian with a plan to provide home care.

The court reviewed extensive evidence from the Community Care Access Centre regarding the incapable person’s complex medical needs and the feasibility of home‑based care.

The proposed guardianship plan was found inadequate and unsustainable, particularly given the need for continuous medical monitoring and professional care.

As no suitable alternative guardian was available, the court appointed the Public Guardian and Trustee as permanent guardian of the person.

Following a successful summary judgment motion enforcing a settlement agreement in an estate dispute, the moving party sought costs.

The court found that the costs submissions addressed a broader range of issues relating to the contested administration of the estate, including disputes regarding compliance with prior court orders and accounting for estate assets.

The record did not allow the court to determine which costs were properly attributable to the summary judgment motion.

The court therefore deferred determination of costs until a case conference addressing accounting issues and the overall administration of the estate.

Parties were directed to prepare to address implementation of the settlement, costs, and potential directions regarding the completion of the estate administration.

Following a successful summary judgment dismissing an action concerning enforcement of an alleged agreement of purchase and sale for vacant land, the court determined costs.

The defendants sought full indemnity or alternatively substantial indemnity costs, relying partly on an earlier offer to settle.

The court held that substantial indemnity costs were not warranted absent misconduct or other exceptional circumstances, and declined to apply Rule 49 consequences where the plaintiffs recovered no judgment.

The court fixed costs on a partial indemnity basis and reduced the defendants’ claimed fees after reviewing the hours spent.

Total costs were awarded against the plaintiffs.

Following a prior decision granting Rule 21 motions and permanently staying a counter-application, the court addressed costs.

The moving parties sought full indemnity costs, arguing the counter-application contained unsubstantiated allegations of dishonesty, illegality, and conspiracy against participants in the Canadian justice system.

The court held that such allegations justified a full indemnity award.

After reviewing the claimed amounts and correcting a minor double-counting issue, the court fixed costs payable forthwith to both moving parties on a joint and several basis against certain self-represented litigants.

A commercial dispute between competing importers of Caribbean food products involved allegations of defamation, statutory unfair competition under s. 7 of the Trade-marks Act, depreciation of goodwill under s. 22, and unlawful interference with economic relations.

The plaintiffs alleged that the defendants made false statements to a supplier accusing the plaintiffs of importing and selling infringing competing products, which were subsequently relayed to the supplier in a written report.

The court held that the oral statements were statute‑barred as slander but that the written republication constituted actionable libel.

Although qualified privilege initially applied, the court found the defendant acted with malice and intentional dishonesty, defeating the defence.

The plaintiffs failed to prove economic loss or that the statements caused termination of their distributorship, but general damages were presumed for libel and awarded to one plaintiff.

The Public Guardian and Trustee applied under s. 55 of the Substitute Decisions Act, 1992 to be appointed permanent guardian of the person of an incapable individual.

The incapable person’s daughter proposed that she instead become guardian and move her mother into her condominium to provide care at home.

The court noted deficiencies in the daughter’s guardianship and management plans and concerns raised by the Community Care Access Centre regarding training and care requirements, including the management of a G‑tube.

The court directed a collaborative process involving the parties and CCAC to attempt to resolve the outstanding care concerns before determining the guardianship application.

The matter was adjourned to permit further consultation and development of an appropriate care plan.

The defendant brought a motion to set aside a 1999 default judgment obtained in an estate-related action alleging misappropriation of estate assets.

The court applied the three-part test under Rule 19.08 of the Rules of Civil Procedure requiring promptness, an adequate explanation for the default, and a triable defence on the merits.

Although the court accepted that the motion was brought promptly after the defendant claimed to learn of the judgment, it found he had knowledge of the action at the time and intentionally ignored the proceedings despite substituted service and direct communications with counsel.

The defendant failed to provide a credible explanation for the default and did not advance any detailed evidence establishing a triable defence.

Considering the significant prejudice arising from attempting to litigate allegations more than a decade later, the court held the interests of justice favoured maintaining the judgment.

Insured homeowners sought summary judgment claiming entitlement to guaranteed replacement cost coverage under a homeowners insurance policy after their residence was destroyed by fire.

Instead of rebuilding on the original site, the insureds purchased a different home in another location and asserted that this constituted a “replacement” within the meaning of the policy’s endorsement.

The insurer maintained that the endorsement only modified the monetary limit of coverage and did not displace the policy’s requirement that replacement occur on the same site to qualify for replacement cost benefits.

The court held that the endorsement must be interpreted in conjunction with the underlying policy and that replacement cost coverage remained contingent on reconstruction at the same location.

Because the insureds relocated rather than rebuilding, their loss was limited to actual cash value coverage.

The plaintiff purchased refrigeration equipment from the defendant for a new retail meat store.

A dispute arose over the payment terms, specifically whether the balance was due before or after the equipment was unloaded at the plaintiff's premises.

The court found that the parties had orally agreed payment would be due only after delivery and installation, making the defendant's refusal to unload the equipment without prior payment a breach of contract.

However, the court held the plaintiff failed to mitigate its damages by refusing to pick up the equipment from the defendant's warehouse, limiting its recovery to the return of its $22,000 deposit.

The applicants, owners of adjacent properties, sought a declaration that the respondents unlawfully obstructed a shared right-of-way by constructing an addition to their home.

The right-of-way was granted for the purpose of vehicular ingress and egress to the applicants' garages.

The court found that while the addition permanently occupied a portion of the right-of-way, it did not substantially interfere with the applicants' ability to access their garages by vehicle.

The application was dismissed, as the encroachment did not constitute an actionable interference with the specific limited purpose of the right-of-way.

The plaintiff brought an ex parte motion seeking a Mareva injunction and related relief against several defendants alleged to have participated in an international fraud scheme involving the sale of semiconductor materials.

The evidence suggested the plaintiff lost $840,000 after being induced to transfer funds through a fraudulent distribution arrangement, and that similar schemes had defrauded numerous victims in the United States.

The court found strong circumstantial evidence linking the primary individual defendant to the fraud and determined that the plaintiff had established a strong prima facie case.

Evidence of financial transfers among the defendants and recent property dispositions supported a risk of asset dissipation.

The court concluded the prerequisites for Mareva relief were satisfied and granted the injunction.

A cheque‑cashing company sought to recover losses arising from a fraudulent mortgage scheme and the negotiation of a bank draft bearing a forged endorsement.

The plaintiff alleged negligence and fraud against multiple parties involved in the mortgage transaction, including the property owner, a lawyer, a lender, and a relative of the homeowners.

The court found that the homeowners were not involved in the fraud and dismissed claims against them and other defendants, including the lawyer and lender.

The court declined to recognize a novel duty of care owed by the drawer of a bank draft to a subsequent negotiator and held that the plaintiff’s loss arose from the strict liability tort of conversion when the draft with a forged endorsement was negotiated.

Liability was established only against the relative who participated in the mortgage fraud.

The applicant brought a motion for summary judgment seeking specific performance of a settlement agreement resolving disputes among siblings relating to estate assets, including a residential property.

The agreement contemplated the applicant purchasing the property from the estate in exchange for relinquishing other estate interests.

The responding party argued that the agreement never came into force or had become void when the closing deadline passed without completion.

The court found the agreement had been validly formed and that the responding party’s inaction and failure to cooperate in executing further documents prevented closing and constituted repudiation.

Specific performance was granted because the property was unique and damages would be inadequate.

The applicants sought a declaration that their insurer owed a duty to defend them in an underlying action brought by their landlord alleging damage caused by a spill of waste oil at leased premises.

The landlord claimed clean‑up costs, repair expenses, and economic losses from delayed re‑leasing.

The insurer denied coverage relying on a pollution exclusion in the commercial liability policy.

The court held that “property damage” in the policy included physical injury to real property and that all damages claimed flowed from the spill of a pollutant.

As the pollution exclusion applied, the insurer had no duty to defend.

Following dismissal of an action seeking specific performance of an alleged agreement of purchase and sale for land, the court determined the appropriate costs award.

The successful defendant sought substantial indemnity costs throughout or alternatively after a formal offer to settle.

The court held that substantial indemnity costs require reprehensible conduct and were not justified, even where the defendant had made a Rule 49 offer and the action was later dismissed.

Applying Rule 57.01 factors and considering the litigation conduct and proportionality of the amounts claimed, the court awarded partial indemnity costs with reductions for excessive legal work while allowing expert report disbursements incurred in response to anticipated expert evidence.