Derrick Mathew Fulton

The applicant and respondent, who are siblings, each own a 50% interest in a residential property.

The applicant commenced an application for partition and sale of the property.

The respondent brought a motion seeking an order to compel the applicant to sell his 50% interest to her at fair market value.

The court dismissed the motion, finding that under the Partition Act, it lacks the jurisdiction to force one joint tenant to sell their interest to the other.

The court declined to award costs to the successful applicant to encourage the parties to expeditiously proceed with the open market sale of the property.

The Court of Appeal for Ontario dismissed the appeal of Lori Gallant, who sought a court order to fix the rental rate for a renewed term of a commercial lease with Sherril Johnson and Fitzroy Johnson.

The court held that the lease’s renewal clause was merely an agreement to agree, providing no basis for the court to set a rental rate or imply a method for doing so.

The court also found no breach of good faith by the respondents in the rental negotiations.

The respondents were awarded costs.

The applicant, Veronica Ann Balkisson, sought a declaration that her son, Stefan Sandy, held title to a property as a bare trustee for her, claiming a resulting trust.

The respondents, Stefan and his wife Andrea, argued that the property was a gift from Veronica to Stefan and his sister Heaven, as an advance on their inheritance.

The court found that Veronica intended to make, and did make, a gift of the property to Stefan and Heaven, and that her later change of mind did not alter the legal effect of the gift.

The application was dismissed.

The Court of Appeal for Ontario addressed the test for bad faith under s. 57(1)(b) of the Residential Tenancies Act, 2006 (RTA) and the potential liability of purchasers in "own use" evictions.

The Landlord and Tenant Board (Board) and Divisional Court had erred by unduly narrowing the bad faith assessment to the landlord's knowledge at the time of notice and by failing to consider the purchaser's good faith.

The Court held that the Board must consider all relevant evidence, including events after the notice, and assess the good faith of both the landlord and the purchaser.

The appeal was granted, and the matter remitted to the Board for redetermination.

The condominium corporation brought a motion to appoint an arbitrator to resolve the plaintiffs' claims against it, which had previously been stayed in favour of arbitration.

The plaintiffs opposed the appointment, arguing they had not commenced an arbitration and could not be forced to act as plaintiffs.

The court granted the motion and appointed an arbitrator, noting that the condominium corporation was entitled to push forward with the claims made against it to clear its name, and that the arbitrator would determine the process.

The applicant brought a request for records before the Condominium Authority Tribunal.

The parties settled the matter during the Stage 2 process.

The Tribunal issued a consent order closing the file and ordering the respondent to pay the applicant $75.00 for Tribunal filing fees.

The applicant condominium owner requested various non-core records from the respondent condominium corporation.

The respondent provided some records but failed to provide others, claiming they could not be located due to poor record-keeping by previous management.

The Tribunal found that the respondent failed to keep adequate records as required by section 55(1) of the Condominium Act, 1998.

The Tribunal ordered the respondent to pay a $1,500 penalty for refusing to provide records without reasonable excuse, reimburse $367.50 in excessive fees charged for the records, provide missing bank statements, and pay $200 in costs.

The applicant, a condominium unit owner, brought an application seeking two orders regarding an upcoming Annual General Meeting: (1) the appointment of a neutral chair for the meeting, and (2) a ruling that the respondent condominium corporation's requirement for owners to obtain physical proxy forms from the condominium office (rather than downloading them) was unlawful.

The applicant's principal was running for election on a platform to repeal a special assessment.

The court dismissed the application, finding no proven serious risk of illegality or harm to warrant a neutral chair, and that the requirement for physical proxy forms, while potentially inconvenient, did not constitute oppression or a clear statutory/regulatory non-compliance issue, especially given the corporation's security concerns.

The court emphasized that the application was premature, as any issues could be addressed after the meeting with a full factual matrix.

The defendant condominium corporation brought a motion to stay the plaintiffs' action against it pending mediation and arbitration under the Condominium Act, 1998 and the Arbitration Act, 1991.

The plaintiffs opposed the stay, arguing that the claims against the condominium corporation were intertwined with the claims against the developer and that bifurcating the proceedings would cause duplication and inconsistent verdicts.

The court found that while bifurcation was unreasonable and risked multiplicity, recent Supreme Court of Canada jurisprudence mandated a stay under section 7 of the Arbitration Act, 1991, as no statutory exceptions applied.

The motion to stay was granted.

The moving party sought leave to appeal from the decision of Gilmore J. The Divisional Court dismissed the motion for leave to appeal and awarded costs of $7,500 to the responding party F.K.Y. Investments Ltd. No costs were awarded to the Yeung responding parties as they did not file a factum.

The plaintiff brought a motion to set aside a registrar's order dismissing its action for delay and sought leave to maintain the action under the Business Names Act.

The action had been automatically stayed because the plaintiff had failed to register its business name.

The court held that the registrar still had jurisdiction to dismiss the action for delay despite the statutory stay.

However, applying the Reid test, the court set aside the dismissal order, finding that the delay was caused by the inadvertence of the plaintiff's former counsel and that the defendants would not suffer significant prejudice.

The court also granted leave to maintain the action, as the failure to register the business name was an innocent oversight that had since been rectified without misleading the public.

The appellant purchaser appealed a summary judgment order granting specific performance to the respondent vendor after the appellant failed to close on a $3 million custom-built home.

The appellant argued the agreement was void due to misrepresentations and lack of solicitor review, and that specific performance was inappropriate.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the agreement was valid and that the property's unique customizations and the flooded housing market justified specific performance rather than damages.

An application to admit fresh evidence was also dismissed.

The appellants, former directors of a non-profit daycare centre, appealed the dismissal of their application for leave to commence a derivative action against a former director and administrator for alleged misappropriation of funds.

The Court of Appeal upheld the application judge's finding that the action was bound to fail, noting that the board of directors and the Public Guardian and Trustee had already investigated the allegations and taken no action.

The appeal and leave to appeal costs were dismissed.

The plaintiff vendor brought a motion for summary judgment seeking specific performance of an agreement of purchase and sale for a custom-built home after the defendant purchaser failed to close.

The purchaser argued the agreement was complex, he lacked English skills, and his agent had a conflict of interest, but provided no legal basis to void the contract.

The court found no genuine issue for trial, upheld the agreement, and ordered specific performance, noting the home's customized features and the difficulty of assessing damages due to unsold inventory.

The plaintiff brought a motion for summary judgment for wrongful dismissal, while the defendant employer claimed the plaintiff had resigned.

The court found that the plaintiff was terminated, as his conduct did not objectively reflect a clear and unequivocal intention to resign.

The court awarded a nine-month notice period, unpaid vacation pay, health benefits expenses, and damages for lost bonuses, finding the bonus was an integral part of compensation.

The plaintiff's claim for punitive damages was dismissed.

The appellants commenced a motor vehicle accident action in December 2010 following a collision in December 2008.

The action was administratively dismissed as abandoned in August 2011 pursuant to rule 48.15 of the Rules of Civil Procedure.

The appellants moved to set aside the dismissal in February 2014, more than two years after the dismissal order.

A master granted the motion to set aside, but the Superior Court judge allowed the respondents' appeal and reinstated the dismissal.

The appellants appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal, finding that the master erred in considering the repeal of rule 48.15 as part of the contextual analysis, erred in assigning fault to the respondents for not filing a defence, erred in finding that the appellants always intended to prosecute the action without evidence to support this finding, and critically erred in failing to consider the finality principle in assessing prejudice to the respondents.

The moving defendants brought a motion for production of documents relating to two alleged settlements: one between the plaintiff and a co-defendant, and another comprehensive settlement allegedly reached among all parties.

The court dismissed the request for communications between the plaintiff and the co-defendant, as both parties denied reaching a settlement and the communications were protected by settlement privilege.

However, the court granted production of communications purportedly made in furtherance of the alleged comprehensive settlement, applying the exception to settlement privilege that allows disclosure to prove the existence of a disputed settlement.

The landlord and tenant brought competing applications regarding the interpretation of a commercial lease renewal.

The tenant argued the lease renewed automatically, while the landlord argued a 2012 Renewal Agreement required the tenant to give six months' notice.

The court found that the tenant had established a claim for rectification based on unilateral mistake, as the landlord's agent had inserted the notice requirement without instructions and without drawing it to the tenant's attention, which amounted to unconscionable conduct.

The court ordered the lease rectified to reflect an automatic right of renewal.

The defendant, Greg Chew, brought a motion to vary a $50,000 costs award made against the defendants following their unsuccessful motion to disqualify the plaintiff's counsel.

Chew argued that the costs should be apportioned severally, making him liable for only 25%.

The court found it had jurisdiction to amend the order under Rule 59.06(1) because the issue of joint and several liability was not adjudicated in the original endorsement.

Applying the principles from Meady v. Greyhound, the court held that the defendants acted jointly in pursuing the disqualification motion and that no exceptions to the general rule of joint and several liability applied.

The motion to vary was dismissed, and the original order was amended to expressly state that the defendants' liability for costs is joint and several.

The appellant appealed an eviction and rent arrears order made by the Landlord and Tenant Board, as well as a subsequent order upholding it on review.

The appellant argued she was a member of the housing co-operative, not a tenant, and that she had obtained money orders for the rent which were never cashed.

The Divisional Court found that the respondent's agent engaged in sharp practice at the review hearing by misrepresenting the appellant's position and the resolution of the jurisdictional issue.

The Court set aside both orders due to breaches of procedural fairness and natural justice.