Doug LaFramboise

The appellant appealed a summary judgment decision requiring him to return a $50,000 deposit to the respondent in a real estate transaction.

The respondent had refused to close the purchase after discovering a second TransCanada Pipeline easement running under the pool, cabana, and patio that had not been disclosed in the Agreement of Purchase and Sale, along with undisclosed litigation between the appellant and the pipeline company.

The Court of Appeal upheld the summary judgment, finding that the appellant breached the APS by failing to convey title free from undisclosed restrictions and by attempting to require the respondent to sign an agreement the appellant had contracted to execute.

The insured discovered water damage to its commercial premises on January 31, 2013 and reported it to its insurer the same day.

The insurer made certain payments under the policy and engaged in settlement discussions while continuing to investigate.

On July 22, 2013, the insurer denied the claim due to policy violations and exclusions.

The insured commenced an action on April 22, 2015.

The insurer moved for summary judgment arguing the action was statute-barred under the two-year limitation period.

The motion judge dismissed the motion, finding the limitation period did not begin to run until July 2013 when the insurer formally denied the claim.

The Court of Appeal allowed the appeal, holding that the motion judge erred in using the insurer's conduct after notification to displace the statutory presumption that the insured knew a proceeding was an appropriate means to remedy its loss as of February 1, 2013.

The court granted summary judgment dismissing the action as statute-barred.

The moving party requested that his 45-day sentence of imprisonment for contempt, which had been varied by the Court of Appeal, be served intermittently on weekends.

The moving party argued for a flexible approach to the doctrine of functus officio.

The court dismissed the request, finding that it was functus officio and had no jurisdiction to vary the sentence.

The court noted that the moving party had the opportunity to make submissions on an intermittent sentence during the original hearing and before the Court of Appeal.

The appellants, Robert Bortolon and his former lawyer Robyrt Regan, appealed findings of civil contempt and custodial sentences of 90 days imprisonment.

The contempt arose from their breach of a court order (the Le May Order) requiring production of documents to the respondent bank.

The appellants had made a deal whereby Regan would deliver documents to Bortolon rather than make them available for inspection by the bank, in exchange for settlement of their personal dispute.

The Court of Appeal dismissed the appeals regarding the contempt findings but allowed the appeals regarding penalty, reducing the custodial sentences from 90 days to 45 days for each appellant.

Following the dismissal of the defendant's motion for summary judgment, the successful plaintiff sought costs.

The plaintiff claimed $10,589.19 on a partial indemnity basis and $15,038.57 on a substantial indemnity basis, while the defendant argued for an award of $4,000.

The court rejected the claim for substantial indemnity costs and awarded the plaintiff $7,250 all inclusive, payable forthwith.

The defendant, Intact Insurance, moved for summary judgment, arguing that the plaintiff's (Nasr Hospitality Services Inc.) claim for property loss was statute-barred under the Limitations Act, 2002.

The plaintiff's premises were flooded on January 31, 2013, and Intact formally denied the claim on July 22, 2013.

The action was commenced on April 22, 2015.

The court dismissed the motion, finding that the limitation period did not begin to run until July 2013, when Intact clearly repudiated its obligation, making the plaintiff's action timely.

The appellant Allto Construction Services Ltd. appealed a trial judgment dismissing its claim for $163,202.98 owed under a subcontract to install a sewage system for a pool construction project.

The respondent Aplus General Contractor Inc. denied owing the amount and asserted a counterclaim for damages to an irrigation system and overbilling.

The trial judge dismissed both the claim and counterclaim, finding that Allto failed to prove the amount owed through invoices or accounting.

The Court of Appeal allowed the appeal, finding the trial judge erred in principle.

The court held that Allto's oral evidence of non-payment, combined with Aplus's admission of the contract and performance of work without deficiencies, was sufficient to establish the outstanding claim without requiring further documentary proof.

The respondent's counterclaim for irrigation system damage was rejected as unreliable and unsupported.

Following a finding of civil contempt against a respondent and his former solicitor for bartering non-compliance with a document production order, the court held a penalty hearing.

The court refused to allow the contemnors to revisit the initial contempt finding.

Finding that the contemnors' actions resulted in the disappearance of highly relevant documents and deprived the applicant of a fair hearing, the court struck the respondents' responding material and granted default judgment.

To denounce and deter the serious misconduct of bartering compliance with a court order for personal advantage, the court sentenced both the respondent and his former solicitor to 90 days of incarceration.

This is a costs endorsement following a family law trial involving claims for child support, spousal support, and equalization.

The respondent, Robert Bortolon, was largely successful in opposing the applicant's, Nathalie Murray's, claims for child and spousal support.

While Ms. Murray was ordered to pay an equalization payment to Mr. Bortolon, her success in defending against Mr. Bortolon's trust claims offset some of his success on equalization.

Considering the principles of proportionality and the Family Law Rules, the court found Mr. Bortolon to be the more successful party overall and awarded him $12,500 in partial indemnity costs, representing one-third of his requested partial indemnity costs, proportionate to his success on the support claims.

The defendant Sikh Lehar International Organization brought a motion to set aside, discharge, or lift a Certificate of Pending Litigation (CPL) registered against its property at 79 Bramsteele Road.

The CPL was obtained by the plaintiffs, Sukhinder Sandhu and 2207190 Inc., who claim to have purchased the property and seek specific performance.

Sikh Lehar needed to refinance significant mortgages maturing in November 2016 and argued the CPL prevented this.

The court found that the CPL should not be fully discharged as the plaintiffs had a reasonable claim to an interest in the property and specific performance was a potential remedy.

However, the court determined that the equities favored modifying the CPL to permit refinancing up to $6,500,000.00, with the new mortgage taking priority, to prevent significant prejudice to Sikh Lehar and potential foreclosure.

The plaintiffs' litigation conduct and delay in registering the CPL were not deemed sufficient grounds for its discharge.

Nathalie Murray sought spousal and child support from Robert Bortolon, requesting a significant income imputation to him.

Her child support claim also relied on Robert standing in the place of a parent to her two sons.

Robert primarily sought an equalization payment and claimed a proprietary interest in the matrimonial home.

The court dismissed Nathalie's claims for child and spousal support, finding Robert did not stand in the place of a parent and that Nathalie had no legal basis for spousal support.

The court also found no basis to impute a higher income to Robert.

Robert's claim for a proprietary interest in the matrimonial home was dismissed.

Ultimately, Nathalie was ordered to pay Robert an equalization payment of $5,816.

The applicant brought a motion for contempt against the respondents and a non-party solicitor, alleging they violated a court order requiring the solicitor to make certain documents available for inspection.

The court found that the solicitor intentionally transmitted "highly prejudicial" documents to the respondent, rather than making them available for inspection, and that the respondent subsequently failed to produce these documents to the applicant.

The court found both the respondent and the solicitor guilty of contempt beyond a reasonable doubt, based on the clear terms of the order, their knowledge of it, and their intentional actions.

The court deferred the imposition of penalties and remedies to a separate hearing, noting the seriousness of the affront to the administration of justice.

The plaintiffs sought summary judgment for damages and release of a deposit following a failed real estate transaction, while the defendant counterclaimed for the deposit's return.

The transaction failed because the defendant discovered undisclosed TransCanada Pipeline (TCPL) easements, including one under the pool and cabana, which allowed TCPL to demand their removal and was subject to ongoing litigation.

The court found that the plaintiffs failed to disclose material information regarding the easements and related litigation, which materially affected the property's use and violated the Agreement of Purchase and Sale's title provisions.

Summary judgment was granted in favour of the defendant, ordering the return of the deposit.

Following a successful motion by the defendants to set aside a default judgment due to improper service, the court determined the issue of costs.

The plaintiffs argued the defendants unreasonably refused to instruct their counsel to accept service.

The court rejected this argument, noting the serious consequences and potential conflicts involved when a solicitor accepts service.

Given the defendants' success and their unaccepted offer to settle, the court awarded the defendants costs of $16,866.10, applying a substantial indemnity scale from the date of the offer.

The defendants moved to set aside a default judgment obtained in a franchise dispute concerning exclusive rights to market a restaurant concept in British Columbia.

They argued the statement of claim had not been properly served and that the affidavits of service from the process server were unreliable.

The court found the alleged service on both the corporate defendant and its director did not comply with the Rules of Civil Procedure and accepted evidence that the individuals said to have received the documents were not authorized agents or members of the household.

The court held that improper service rendered the judgment irregular and that the defendants also satisfied the discretionary factors for relief, including prompt action, a plausible explanation for default, and arguable defences on the merits.

The default judgment and noting in default were therefore set aside.

Following a successful motion reinstating the applicants as members of a religious organization, the court determined the appropriate costs award.

The applicants sought full indemnity costs for the entire action dating back to an earlier request for reinstatement, relying in part on an unaccepted Rule 49 offer to settle.

The court held that costs should be limited to work related to the reinstatement motion heard on August 22, 2014 and not the broader action or prior proceedings.

While the applicants were completely successful on the reinstatement issue and entitled to costs, the court found their claimed time disproportionate to the focused issue litigated.

Costs were fixed at $12,000 all inclusive, payable by the organization, and not by its officers who were not parties to the motion.

The defendant brought a motion seeking a determination that a construction lien was registered outside the time limits prescribed by the Construction Lien Act.

The moving party argued the lien was invalid because the only invoice for work performed had been delivered more than 45 days before the lien was registered.

The responding party produced time records showing additional work at the project site within 45 days of the lien registration.

The court found insufficient evidence to determine whether the work fell within the lien period and noted disputes about the date of last work and substantial completion.

Concluding that genuine issues requiring a trial remained, the court dismissed the motion for summary judgment.

The appellants appealed part of a Master's order denying their motion to dismiss the respondents' counterclaim in a mortgage enforcement action.

The appellants had obtained summary judgment on the main action but sought dismissal of counterclaim allegations including repayment of funds deducted from the mortgage advance and damages for vandalism, breach of contract, conspiracy, and breach of fiduciary duty.

The court held that the appellants failed to link their evidentiary record to the specific counterclaim allegations and therefore did not meet their burden on the summary judgment motion.

The Master correctly applied the governing legal principles and did not commit a palpable and overriding error or exercise discretion on wrong principles.

The appeal was dismissed and costs were awarded to the respondents.

The appellants appealed a Master’s order refusing to dismiss most aspects of a counterclaim on a summary judgment motion in a mortgage enforcement action.

The counterclaim alleged vandalism, burglary, trespass, breach of contract, conspiracy, and repayment of fees deducted from the mortgage advance.

The appellants argued that the Master misapprehended the evidence and improperly shifted the burden by requiring them to disprove the respondents’ allegations.

The court held that the appellants failed to adduce evidence specifically addressing several pleaded claims or linking their evidence to the alleged causes of action.

The Master applied the correct legal principles and committed no palpable and overriding error.

The defendant moved to set aside a default judgment, vacate a writ of execution, and extend time to deliver a statement of defence in a negligence and breach of retainer claim arising from a failed mortgage transaction.

The court held the default judgment was irregular because the claim for professional negligence and breach of contract was not a liquidated demand capable of supporting default judgment without assessment of damages.

Although the court found the defendant had likely been personally served, it accepted that the default was not deliberate and that the defendant moved promptly upon learning of the writ.

The noting in default was set aside and the defendant was permitted to deliver a defence.

The court also vacated the writ of execution, finding that maintaining it would amount to impermissible pre‑judgment execution akin to a Mareva injunction without the required evidentiary basis.