David P. Lees

This appeal concerned the enforcement of Minutes of Settlement that resolved prior litigation between two factions of a church, Bethel Restoration Ministries.

The motion judge had ordered enforcement, requiring Bethel to make overdue payments and allowing a property registration.

The appellants challenged this order on three grounds: lack of jurisdiction due to the internal church dispute, the Minutes being void as prohibited by Bethel's constating documents, and the respondents having unclean hands.

The Court of Appeal dismissed the appeal, affirming that the Minutes created legally cognizable civil rights (contractual and property rights), thereby grounding the court's jurisdiction.

It also found that the Minutes were not prohibited by the church's by-laws, as they represented a valid exercise of the Elders' power to compromise claims.

The unclean hands argument was rejected as it pertained to conduct resolved by the Minutes.

The Greaves Group, having successfully enforced Minutes of Settlement, sought costs on a substantial indemnity scale.

The court reviewed the context, distinguishing the case from precedents where substantial indemnity was awarded due to reprehensible conduct.

Finding no improper conduct by the Noble Group, the court awarded costs on a partial indemnity scale, fixing the amount at $15,800, inclusive of fees, disbursements, and HST.

The parties, representing two factions of a divided church congregation, entered into a settlement agreement to divide church assets and funds.

The respondents partially performed the agreement but stopped making payments, arguing that the court lacked jurisdiction to intervene in the affairs of a religious organization and that the settlement was unfair.

The court held that while ecclesiastical and theological disputes are non-justiciable, the enforcement of a settlement agreement concerning property and funds is a standard contractual matter within the court's jurisdiction.

The application to enforce the settlement was granted, and the cross-application challenging jurisdiction was dismissed.

The defendants moved to strike the plaintiffs' $20 million claim arising from the revocation of the plaintiff's aviation delegation.

The court struck the claims for conspiracy, breach of contract, injurious falsehood, negligence, wrongful dismissal, and intentional interference with contractual relations for failing to plead necessary elements, but granted leave to amend.

The court declined to strike the claim for misfeasance in public office, finding it adequately pleaded, and dismissed the defendants' motion to strike portions of the claim as scandalous or an abuse of process.

The applicants, members of the Geneva Park community and Friends of Geneva Park, brought an urgent application seeking declarations of trust (implied, constructive, resulting, or charitable purpose trust) over the Geneva Park property, an order for directions or investigation under the Charities Accounting Act, production of the sale agreement, a Certificate of Pending Litigation, and an interim injunction to prevent the sale of the property by YMCA of Simcoe/Muskoka (YSM) to a private purchaser.

The applicants argued that their historical donations and contributions created a beneficial interest or trust.

The court dismissed the application, finding no evidence to support the creation of any trust, no misuse of charitable funds by YSM, and that granting an injunction or CPL would be unjust and inequitable, as the sale was a reasonable solution for the financially struggling charity.

This is a costs endorsement from the Court of Appeal for Ontario.

In accordance with an agreement between the parties, the appellants were ordered to pay costs to the respondents, Mandeep Dhatt and Kulwinder Dhatt, fixed at $8,200, and to the third party respondents, Jay Brijpaul and Re/Max West Realty Inc., Brokerage, fixed at $6,700.

Both amounts were inclusive of disbursements and applicable taxes.

The purchase price under the agreement of purchase and sale dated January 22, 2016, was to be reduced by the amount of these costs.

The Court of Appeal for Ontario dismissed an appeal brought by the defendants (appellants) challenging a trial judge's decision to grant specific performance of a real estate agreement and award substantial indemnity costs.

The appellants argued the trial judge erred in refusing multiple adjournment requests, including those based on medical grounds, and in granting specific performance for a property they claimed was not unique.

The Court found no error in the trial judge's exercise of discretion regarding adjournments, citing the appellants' history of non-compliance with court orders and lack of diligence.

It also affirmed that specific performance is not an "extraordinary remedy" and that the trial judge correctly applied the factors for its award, including the property's unique qualities and the inadequacy of damages.

The substantial indemnity costs award was also upheld due to the appellants' litigation misconduct.

The successful purchasers in a specific performance action moved to expedite the vendors' appeals, require security for costs, and lift the stay of the trial judge's cost order.

A non-party law firm, acting as an execution creditor, moved to intervene and delay the purchasers' motion pending a priority dispute in the Superior Court of Justice.

The Court of Appeal granted the motion to expedite the appeals, noting the purchasers withdrew their other requests.

The intervention motion was dismissed, as the priority dispute among creditors was properly a matter for the Superior Court of Justice.

The appellants moved for a stay of a trial judgment ordering specific performance of an agreement of purchase and sale and requiring them to vacate the property.

The trial proceeded largely in their absence after their requests for an adjournment were denied.

The Court of Appeal dismissed the motion for a stay, finding that while the appeal raised a serious question regarding the refusal to adjourn, the appellants failed to establish irreparable harm or that the balance of convenience favoured a stay, particularly given the respondents' undertaking not to deal with the property pending the appeal.

Extreme Sandbox, LLC moved for summary judgment against KGM Simulation Inc. and Fluid Motion Dynamics Inc. for breach of contract, seeking $100,000 or the return of a $40,425 USD deposit, and dismissal of the defendants' counterclaim.

The defendants responded with their own requests for summary judgment; Fluid Motion Dynamics Inc. sought dismissal from the action, and KGM Simulation Inc. sought $8,002.50 USD and dismissal of Sandbox's claim.

The court granted Fluid Motion Dynamics Inc.'s motion for dismissal, finding it was not a proper party to the contract.

However, the court dismissed both Extreme Sandbox, LLC's and KGM Simulation Inc.'s motions for summary judgment, determining that genuine issues of credibility regarding contract formation and breach, particularly concerning the interpretation of "progress payment" in email exchanges, required a trial.

Following the dismissal of the plaintiff's motion for an interlocutory injunction, the parties made written submissions on costs.

The defendants sought substantial indemnity costs of $99,920.93 based on offers to settle, while the plaintiff argued for partial indemnity costs of $15,000 plus disbursements.

The court found no justification for substantial indemnity costs as the offers to settle encompassed the entire action, not just the motion.

After adjusting hourly rates and reducing time spent on the general defence of the action, the court awarded the successful defendants partial indemnity costs fixed at $44,000 all-inclusive.

Following a seven-day trial where the plaintiff's claim for breach of a construction contract, negligent misrepresentation, and punitive damages was dismissed, the court addressed the issue of costs.

The plaintiff had wrongfully repudiated the contract, entitling the defendants to retain a $175,432.50 deposit.

The defendants had made three offers to settle, all more favourable than the judgment.

While the defendants sought substantial indemnity costs, the court found no egregious misconduct by the plaintiff to warrant such an award.

Instead, the defendants were awarded partial indemnity costs.

The plaintiff's house was destroyed by fire, and she entered into a construction contract with the defendants to rebuild it.

Disagreements arose regarding contract terms, pricing, and completion dates, leading the plaintiff to terminate the contract before construction commenced and demand the return of her 25% deposit.

The court found that the plaintiff, not the defendants, repudiated the contract.

The initial payment was determined to be a non-refundable deposit, and the plaintiff was not granted relief from forfeiture, as the deposit amount was not found to be disproportionate to the defendants' damages or unconscionable to retain.

The applicants, acting as attorneys for Malzina Lozzi, sought an order to transfer title of a property from the respondent, who held it as a bare trustee, back to Malzina.

The respondent, also an attorney for Malzina, opposed the transfer, citing Malzina's original intention for estate tax planning and concerns about the applicants.

The court dismissed the application, finding that Malzina's intention for the respondent to remain the bare trustee was clear and that the applicants failed to demonstrate that transferring the property back was in Malzina's best interest.

The moving defendants sought dismissal of the plaintiffs’ action for delay under Rule 24.01(c) of the Rules of Civil Procedure.

The court examined whether the delay was inordinate and inexcusable and whether it created a substantial risk that a fair trial was no longer possible.

The action had been commenced in 1987 and had not been set down for trial for more than 25 years, with long periods of inactivity attributable to the plaintiffs.

The court held the explanations offered, including related insolvency proceedings, settlement discussions, and financial constraints, were insufficient.

Presumed prejudice was not rebutted and actual prejudice was established due to unavailable key witnesses.

The action was dismissed for delay.

The appellants, private electrical contractors, appealed a decision of the Ontario Energy Board which held that affiliates of municipally-owned electricity distributors are permitted to provide street lighting services under section 73(1) of the Ontario Energy Board Act, 1998, without geographic restriction.

The Divisional Court applied a reasonableness standard of review, finding that the Board's interpretation of its home statute was justified, transparent, and intelligible.

The appeal was dismissed.

The appellant former landlord appealed a Landlord and Tenant Board decision ordering her to pay damages for a bad faith eviction, arguing she was denied natural justice.

The initial hearing proceeded in her absence after she was served by mail at the rental unit, despite the Board and the respondent knowing she lived in Florida for most of the year.

The Divisional Court held that proceeding with the hearing when the Board knew the appellant had no actual notice constituted a denial of natural justice.

The Board's decisions were set aside and the matter was remitted for a rehearing.

The applicants, former volunteer board members of a charity, were unsuccessful in their application to set aside an election.

The respondents sought substantial indemnity costs of nearly $100,000, including costs against the applicants' solicitor personally.

The court rejected the argument that the applicants' volunteer status immunized them from costs, but found the respondents' pre-litigation conduct warranted a reduction.

Costs were fixed on a partial indemnity scale at $30,000 plus disbursements, and the issue of the solicitor's personal liability was reserved.

The appellants appealed a trial judgment holding them jointly and severally liable for breach of construction contracts and imposing a constructive trust on a portion of the funds.

The Court of Appeal upheld the trial judge's calculation of damages and the finding of personal liability against the individual appellant, as he failed to disclose he was acting for a corporate entity.

However, the Court set aside the constructive trust, finding that the risk of the appellants' bankruptcy was purely speculative and damages were an adequate remedy.

The appeal was allowed in part.

The applicants, former board members of a hospice charity, sought judicial review and leave to appeal several rulings made by a court-appointed arbitrator regarding a disputed board election.

They also sought to set aside the election results based on alleged irregularities.

The court held that judicial review is not available for decisions of a private consensual arbitrator.

The court further found that the applicants were out of time to appeal most of the arbitral awards under the Arbitration Act, and regardless, the arbitrator made no errors of law.

Finally, the court declined to set aside the election results, finding that the alleged irregularities were minor and did not go to the heart of the electoral process.