David M. Adams

The defendant/plaintiff by counterclaim brought a motion for summary judgment seeking an order for the sale of a jointly-held cottage under the Partition Act and dismissal of the plaintiff's action.

The plaintiff alleged two oral contracts — one to refrain from selling the cottage before 2033 and another regarding a time-sharing schedule — as well as tortious interference with his use and enjoyment of the property.

The court found the plaintiff's evidence of oral agreements unpersuasive and unsupported, held that no action in nuisance could lie between joint tenants on jointly-held land, and determined that the alleged interferences were trivial.

Summary judgment was granted directing the sale of the cottage, the plaintiff's action was dismissed, and partial indemnity costs of $49,420.35 were awarded to the moving party.

The plaintiff sought to recover $100,000 loaned to a failed exotic dance bar and restaurant business in Brockville, claiming the defendant Tim Beale personally guaranteed the loan and was a silent partner in the business.

The defendant denied both allegations, claiming he was merely an investor who also lost money when the business failed.

The court found the action was statute-barred under the Limitations Act, as the plaintiff made a demand for payment in September 2014 but did not commence litigation until April 2017, exceeding the two-year limitation period.

Additionally, on the merits, the court found insufficient evidence to prove the defendant guaranteed the loan or was a silent partner.

The action was dismissed.

A municipality sought a declaration that it was not bound by an arbitration clause in a 1993 participation agreement governing a landfill operation, arguing that an amended environmental compliance approval issued in 2019 voided the agreement.

The respondent municipality moved to stay the application in favour of arbitration.

The court applied the two-part framework from Peace River Hydro Partners v. Petrowest Corp. and found that the technical prerequisites for a mandatory stay were met and that neither of the exceptions raised by the applicant—undue delay or suitability for summary judgment—applied on a clear case standard.

The court granted the stay and ordered the matter to arbitration.

The Court of Appeal for Ontario allowed the appeal from an order refusing to set aside a default judgment against Len’s Cove Marina Ltd. The court found that the motion judge erred in weighing the relevant factors for setting aside a default judgment, particularly by failing to recognize the presence of an arguable defence and a plausible explanation for the default.

The court emphasized that the interests of justice favoured a determination on the merits and set aside the default judgment, granting the Marina 30 days to deliver its statement of defence.

The plaintiff, First of Five Incorporated, sought an interlocutory injunction to prevent the defendants, Recipe Unlimited Corporation and J.S.M. Corporation (Ontario) Ltd., from terminating a franchise agreement, lease, and sublease pending the outcome of litigation.

The court found that the plaintiff had a contractual right to renew the franchise, subject to certain conditions, and that the issues raised—including good faith, payment disputes, and the effect of the Arthur Wishart Act—were serious and required trial.

The court held that irreparable harm would result if the injunction were not granted, and the balance of convenience favored the plaintiff.

The injunction was granted, and costs were awarded to the plaintiff.

The defendants brought a motion for partial summary judgment to strike the plaintiff's derivative claim, appoint independent counsel for the nominal corporate defendant, and amend their pleadings.

The dispute arose over rental payments between two related corporations following a shareholder's death.

The court found the derivative action was not a nullity and appeared to be in the corporation's interests, except for the plaintiff's request to wind up the corporation.

To resolve the conflict of interest without appointing independent counsel, the court stayed the derivative action pending the determination of the plaintiff's oppression claim.

Leave to amend pleadings was granted.

This endorsement addresses a breach of contract lawsuit where the defendant failed to attend a pre-emptory virtual hearing and had a history of intentional delay.

The court found the defendant's actions constituted intentional delay to avoid responsibility.

Consequently, the defendant's defence was struck, and judgment was issued in favour of the plaintiffs, with costs.

The appellant franchisee appealed a motion judge's decision denying an interlocutory injunction to prevent the termination of its franchise agreement.

The Divisional Court allowed the appeal, finding the motion judge's two-paragraph reasons were insufficient to permit meaningful appellate review as they failed to address the renewal clause, the factual disputes, or the RJR-MacDonald test.

The Court declined to decide the injunction on the merits, remitting it to a different judge.

The Court also held that the franchisor's undertaking not to terminate the agreement pending the determination of the injunction motion remained binding through the appeal process.

The moving party sought leave to appeal a lower court order dated December 7, 2023.

The Divisional Court granted leave to appeal and ordered that the appeal be expedited.

The court also directed that the moving party's motion for interim relief be scheduled on an expedited basis before a single judge.

The plaintiff, a franchisee, brought an urgent motion seeking a stay of a prior decision denying injunctive relief and a mandatory injunction to restore possession of the franchise premises, pending leave to appeal to the Divisional Court.

The franchisor had locked out the plaintiff after the initial injunction motion was dismissed.

The court found it lacked jurisdiction to grant the requested relief, determining that the Divisional Court, as the court to which leave to appeal was being sought, was the proper forum for such interim orders under section 134(2) of the Courts of Justice Act.

The motion was transferred to the Divisional Court.

The applicant sought a declaration regarding the continued validity and use of a registered right of way over the respondents' properties.

The respondents argued the right of way was extinguished or abandoned due to the construction of an alternate public road, abuse of right, or implied release, and sought to modify or extinguish it.

The court found the right of way remained in full force and effect, rejecting the respondents' arguments for extinguishment or abandonment.

However, the court permitted the respondents to erect unlocked gates and signs to restrict use to deeded owners and their guests.

The defendants moved to set aside an order granting a certificate of pending litigation (CPL) against the LaSalle Property and to discharge the CPL.

The plaintiff had obtained the CPL without notice, claiming a plausible interest in the property via constructive or resulting trust and proprietary estoppel.

The defendants argued no triable interest and material non-disclosure.

The court dismissed the defendants' motion, finding a triable issue existed and no material non-disclosure that would have altered the original CPL grant.

The court also dismissed a third party's motion to intervene.

Following a trial where the defendants successfully defended a claim regarding riparian rights and water access, the court determined the appropriate quantum and scale of costs.

The defendants sought substantial indemnity costs based on a Rule 49 offer, while the plaintiffs argued for a lower amount.

The court found the Rule 49 offer was not a true compromise and awarded partial indemnity costs to the defendants, fixed at $16,000 plus disbursements and HST, noting the reasonable conduct of both parties.

The plaintiffs brought an action alleging that the defendants' boathouse, located in the water in front of the plaintiffs' shoreline, interfered with their riparian rights of access.

The court found that the boathouse did significantly restrict the plaintiffs' riparian rights.

However, because the boathouse had been in its location for over 50 years, the court held that the plaintiffs' claim was statute-barred and extinguished by the 10-year limitation period under sections 4 and 15 of the Real Property Limitations Act.

The court declined to read the discoverability principle into the RPLA.

The action was dismissed.

This endorsement addresses the costs of a dismissed motion brought by the plaintiffs for security for their $8,000,000 claim or an injunction against asset dissipation.

The motion was dismissed, and the parties subsequently failed to agree on costs, despite having previously reached an accord on a $1,000,000 security amount.

The court noted that significant costs could have been avoided due to the parties' inability to agree on *when* costs should be determined.

The defendants sought substantial indemnity costs, but the court awarded partial indemnity costs of $140,000 to the defendants, excluding expert report fees that could be utilized at trial, while including costs for cross-examinations.

The applicant medical officer of health obtained a without-notice order under section 102 of the Health Protection and Promotion Act to close the respondents' pub for defying COVID-19 public health measures.

At a come-back hearing, the self-represented respondent argued the orders were invalid, breached his rights, and that the pub was his residence.

The court dismissed the respondents' arguments, finding the drastic remedy of changing the locks was proportionate to their open defiance of the law.

The original orders were continued, and the respondents were ordered to pay $20,000 in costs.

The applicant sought directions under Rule 60.17 of the Rules of Civil Procedure to enforce a prior court order requiring the closure of the respondents' business for violating COVID-19 public health measures.

The respondents had refused to comply with the initial order, claiming the business was now a residence.

The court granted the directions, authorizing the Sheriff and police to remove all persons from the premises and change the locks to ensure compliance.

The Medical Officer of Health for Kingston, Frontenac and Lennox and Addington brought an ex parte application for a restraining order under s. 102 of the Health Protection and Promotion Act against the respondents, who operate a restaurant.

The respondents had openly defied a s. 22 order requiring them to comply with COVID-19 public health measures, including mask mandates and vaccine passports.

The court found clear breaches of the order and the applicable regulations.

The court granted the restraining order, including a term directing the Sheriff to lock the external doors of the premises, and scheduled a come-back hearing.

The Crawfords hired Shane Ross and his companies (Standard Building Contractors Limited and Standard Paving Limited) to rebuild their fire-damaged home.

Despite receiving significant insurance proceeds, the defendants performed minimal work and engaged in fraudulent conduct, including submitting forged engineering documents for a building permit.

The Crawfords terminated the contract and sought damages, return of funds, a permanent Mareva injunction, and a finding of contempt.

The defendants counterclaimed for work done and asserted a construction lien.

The court found that the defendants fundamentally breached the contract, engaged in deceptive and fraudulent conduct, and were in contempt of court for violating a prior Mareva injunction.

The court awarded the Crawfords judgment for the advanced funds (less minimal work value), punitive damages, and dismissed the construction lien, awarding damages under the Construction Act.

The Mareva injunction was made permanent and expanded.

The plaintiffs sought to amend their statement of claim to limit their damages to $200,000 and to have the action proceed under the simplified procedure pursuant to Rule 76.

The defendants opposed the application of the simplified procedure, arguing prejudice due to discovery limits.

The court granted the plaintiffs' motion, finding that the amended claim and the defendants' counterclaim both fell within the $200,000 limit, making the simplified procedure mandatory.

The court declined to apply the presumptive costs consequences under Rule 76.13(1), leaving the costs of the amendment to the discretion of the trial judge.