Deborah Palter

In a family law proceeding, the parties disputed whether the applicant, who suffers from mild dementia and requires a litigation guardian, had the testimonial competence to testify at trial.

The court reviewed the conflicting expert evidence from geriatric specialists regarding her capacity to observe, recollect, and communicate.

Applying section 18(2) of the Ontario Evidence Act, the court determined it was necessary to conduct an in-person examination of the applicant to assess her testimonial capacity before ruling on the issue.

Following a motion where the tenant successfully obtained relief from forfeiture and the landlord successfully obtained all rent arrears, both parties sought costs.

The landlord sought $300,000 based on partial indemnity and an unaccepted offer to settle, while the tenant sought $218,388 or that each party bear their own costs.

The court ordered that each party bear their own costs, noting the divided success, the withdrawal of the landlord's offer to settle prior to the hearing, and the unique and unforeseen circumstances of the COVID-19 pandemic.

The plaintiff tenant, a non-essential retailer, ceased paying rent during the COVID-19 pandemic, arguing the landlord breached the lease by failing to provide a first-class shopping centre due to government-mandated closures and restrictions.

The landlord sought to terminate the lease.

The court held that the landlord was not in breach of the lease, as it was complying with provincial laws, and the tenant was not entitled to an abatement of rent.

However, the court granted the tenant relief from forfeiture under the Commercial Tenancies Act, allowing a structured deferral of rent arrears with interest, noting the tenant's prior unblemished record and the unprecedented nature of the pandemic.

The plaintiffs, former executives of the Durham College student association (DCSI), sued Durham College and DCSI following their termination by DCSI.

Durham College brought a motion for summary judgment to dismiss the claims against it, arguing it had no involvement in the termination and owed no duty to supervise DCSI's employment relationships.

The court granted the motion, finding that the governing legislation prohibited Durham College from interfering with DCSI's normal activities, precluding any duty of care.

The court also dismissed the plaintiffs' claims for negligent misrepresentation, intentional infliction of mental distress, specific performance, and discrimination due to lack of evidence and insufficient pleadings.

In a priority dispute under the Construction Lien Act, the court determined the relative priorities of several mortgagees and construction lien claimants.

The court held that professional fees incurred by a first mortgagee to protect its security constituted an 'advance' under section 78(6) of the Act, granting it priority.

The court also found that a $10 million advance made jointly to two borrowers under a second mortgage was an advance in respect of that mortgage, giving it priority over the lien claimants.

However, the court ruled that an advance made under a loan agreement to a third party was not an advance in respect of a collateral mortgage given by the developer as guarantor, meaning the lien claimants had priority over the collateral mortgage.

The applicants sought costs following a motion for the production of documents.

Both parties claimed success on the motion.

The court found that the applicants were substantially more successful, as the respondent's principal position was that no disclosure should be ordered, forcing the applicants to bring the motion.

The court awarded the applicants costs fixed at $11,500 on an all-inclusive basis, reflecting a reduction for their lack of success on an alternative argument.