Don Morris

The defendant brought a motion for summary judgment to dismiss the plaintiff's claim.

The plaintiff alleged that she and her late husband gave the proceeds from the sale of two properties to the defendants in trust, and that these funds were used to purchase a condominium to be held in trust for the plaintiff.

The defendant argued the funds were legitimate payouts for discharged mortgages.

The court found no genuine issue requiring a trial, concluding the documentary evidence supported the defendant's position that the funds were mortgage payouts, not trust funds.

The court rejected the plaintiff's assertion that the mortgages were shams designed to avoid creditors.

The motion for summary judgment was granted and the action dismissed.

The plaintiff's motion to preserve funds under Rule 45.02 was dismissed, and the successful defendant sought costs on a substantial indemnity basis.

The defendant had delivered a Rule 49 offer to settle prior to the motion.

The court found the defendant was entitled to substantial indemnity costs but reduced the claimed hours by 50% as they were excessive and duplicative of preparation for a prior summary judgment motion.

Costs were fixed at $6,200 for fees and $500 for disbursements, plus HST.

A neighbour who provided assistance to an elderly woman for nearly 15 years sought to enforce a $100,000 cheque given to him by the woman shortly before her death.

The woman had also made a bequest of $100,000 to the neighbour in her will.

The cheque was returned by the bank due to insufficient funds in the account, and the woman died before the shortfall could be remedied.

The court held that a gift by cheque is not complete until the cheque is cashed or has cleared.

Since the woman lacked sufficient funds in her account and died before the cheque could be presented for payment, the gift failed for lack of delivery.

The court also rejected arguments based on the Bills of Exchange Act, estoppel by convention, and equitable principles.

The applicant sought to enforce payment of a $100,000 cheque received as an inter vivos gift from the deceased shortly before her death.

The deceased mistakenly believed she had sufficient funds to cover the cheque, which subsequently could not be cashed due to a shortfall in her account.

The court dismissed the application, holding that a gift by cheque is not complete until it clears, and a sufficient act of delivery did not occur as the donor lacked the funds.

The equitable doctrine of estoppel by convention was also found inapplicable as the applicant did not change his legal position in reliance on the shared mistaken assumption.

Following dismissal of a civil action against a casino operator arising from a fraudster gambling stolen funds, the defendant sought partial indemnity costs of the action.

The plaintiffs argued the case raised a novel legal issue and that awarding costs would unfairly compound the losses already suffered through the fraud.

The court considered the access to justice principles discussed in Boucher v. Public Accountants.

In the circumstances, the court exercised its discretion to decline awarding costs.

No costs were ordered despite the defendant’s success in the underlying action.

The moving defendants, a lawyer and law firm acting for a mortgagee in a mortgage enforcement proceeding, brought a motion under Rule 21.01 of the Rules of Civil Procedure to strike portions of the amended statement of claim alleging improper withholding of surplus proceeds following a power of sale.

The plaintiff alleged the lawyers attempted to extort a release by withholding trust funds and sought damages for abuse of process, negligence, and breach of ethical duties.

The court held that opposing counsel owe no duty of care or fiduciary duty to an adverse party and that alleged breaches of professional or ethical duties are owed to the court and the governing law society, not to opposing litigants.

As a result, the claims disclosed no reasonable cause of action and were frivolous and vexatious.

The impugned portions of the claim against the lawyer and law firm were struck.

Following a judgment in favour of the applicant in a commercial lease dispute involving approximately $19,000, the court determined the appropriate costs award.

The applicant sought $14,424.02 in partial indemnity costs based on 39.8 hours of legal work.

Although the court accepted the time spent and hourly rate as reasonable, it considered the proportionality of costs relative to the modest amount in dispute under Rule 57.01 of the Rules of Civil Procedure.

Taking into account the applicant’s settlement efforts and the absence of settlement offers or cost submissions from the respondents, the court exercised discretion to reduce the amount claimed and fixed costs at $12,000 inclusive of fees, disbursements, and HST.

A commercial tenant sought a determination that it was not liable under a net‑net lease for its proportionate share of the cost of completely repaving a parking lot and for the cost of replacing a damaged vehicle door.

The landlord argued the tenant was responsible for common area maintenance and repair expenses.

The court held that full replacement of a 19–20‑year‑old parking lot constituted a capital replacement caused by reasonable wear and tear, not “maintenance” or “repair” contemplated by the lease.

The court also preferred the tenant’s evidence that the door damage pre‑dated the tenancy.

The tenant was therefore not liable for the repaving cost, the door replacement cost, or bailiff fees relating to a dispute about last month’s rent.