David M. Sanders

The plaintiff brought a motion for partial default judgment against the defendants for unpaid electrical equipment and services.

The defendants were noted in default and did not move to set it aside.

The court granted default judgment for breach of contract and fraudulent misrepresentation, finding the defendants made false representations to secure continued services.

The court denied claims for specific performance and mandatory injunctive relief as incompatible with a full damages award, and awarded partial indemnity costs.

The appellants appealed a Small Claims Court decision dismissing their motion to set aside default judgments totaling approximately $115,000.

The appellants argued they were victims of identity theft, were never served with the claims, and that a fraudster had taken out the loans and hired a paralegal to negotiate on their behalf.

The Divisional Court found no palpable and overriding errors in the Deputy Judge's findings that the appellants were properly served and that their fraudster theory defied logic.

The appeal was dismissed.

The appellants appealed a decision dismissing their application under s. 440 of the Municipal Act, 2001, seeking to enforce a municipal fence by-law against the respondents.

The application judge had declined to intervene, finding the Municipality had articulable reasons for not enforcing the by-law.

The Court of Appeal agreed that the application judge erred in requiring proof of municipal unreasonableness or bad faith for a taxpayer to succeed under s. 440.

However, the appeal was dismissed because the appellants failed to provide sufficient evidence to establish a clear breach of the Fence By-law, particularly regarding how the by-law's definitions, which are tied to "street" applied to the respondents' property, which abuts private roads.

Following a successful appeal from a Small Claims Court decision, the appellant sought costs of $9,454.44, while the respondent proposed $6,000.

The Divisional Court fixed the costs of the appeal at $8,500 inclusive of disbursements and HST, noting the appellant's actual costs were over $42,000.

The appellant appealed a Small Claims Court decision awarding the respondent $10,000 in damages for defamation arising from an email sent to their condominium management following an altercation.

The Divisional Court allowed the appeal and dismissed the action, finding multiple errors of law.

The court held that the defamation claim was statute-barred under the Limitations Act, 2002, as it was added to the pleadings more than three years after the email was sent.

Furthermore, the court found that the respondent failed to properly plead or prove the elements of defamation, and the trial judge erred by failing to consider available defences such as qualified privilege.

The applicants' application regarding a fence dispute was dismissed.

The respondents sought costs on a full indemnity basis of approximately $41,000, arguing the litigation was trivial and driven by the applicants' self-centered obsessiveness.

The applicants sought their own costs of approximately $19,000, arguing they achieved partial success because the respondents removed an encroaching fence after the application was commenced.

The court agreed the litigation was largely unnecessary but acknowledged the applicants' limited success regarding the removed fence.

The court ordered the applicants to pay the respondents $25,000 in costs inclusive of HST and disbursements.

The applicants sought an order compelling the respondents to reduce the height of a fence to comply with a municipal by-law, after the municipality declined to enforce it.

The court considered whether it could intervene in a municipality's discretionary decision not to enforce a by-law.

Relying on established jurisprudence, the court found that it could only intervene if the municipality acted unreasonably or in bad faith.

As no such evidence was adduced, and the municipality provided articulable reasons for its decision, the application was dismissed.

The defendants brought a motion to set aside an ex parte order granting a Certificate of Pending Litigation (CPL) against their current residence and to discharge the CPL.

The plaintiff contractor had performed work on the defendants' cottage but failed to perfect a lien under the Construction Lien Act.

After the defendants sold the cottage and used the proceeds to buy a new home, the plaintiff obtained a CPL on the new home, claiming an equitable interest.

The court discharged the CPL, finding that the plaintiff failed to make full and fair disclosure on the ex parte motion, did not have a reasonable claim to an interest in the land, and was improperly attempting to revive expired lien rights, which would subvert the Construction Lien Act.

The plaintiffs brought an action for damages for breach of a verbal contract regarding the extraction of aggregate from their gravel pit.

The defendants argued the claim was barred by the Limitations Act, 2002 and the doctrine of laches, asserting a 30-day payment term triggered the limitation period years prior.

The court rejected this defence, finding the agreement was for payment 'when paid,' creating a running balance.

The court granted judgment for the unpaid extractions against the corporate defendant but refused to pierce the corporate veil to hold the individual director personally liable.

A small set-off was granted for the defendants' counterclaim.

The applicants successfully obtained an order declaring the respondents vexatious litigants.

The court then considered the applicants' request for costs.

The respondents did not file any responding costs submissions.

The court found that the respondents' underlying litigious conduct involved abuse of process and reprehensible conduct, which justified an elevated costs award.

The court awarded the applicants costs on a full indemnity basis, fixed at $10,000, noting that parties who successfully bring vexatious litigant applications perform a service for the court and other litigants.