Edward L. D’Agostino

The appellants, Wesley Moore and St. Jacobs Carpenter House Inc., appealed an order requiring them to cease operating an unlicensed retirement home.

The core issues were whether their facility met the statutory definition of a "retirement home" under the Retirement Homes Act, 2010, specifically regarding the provision of "care services" (meals and drug administration), and whether the application judge erred in finding an abuse of process or in ordering the cessation of operations.

The Court of Appeal upheld the application judge's findings, confirming that the facility provided at least two care services, including a broad interpretation of "administration of a drug" to encompass assistance.

The court also rejected the abuse of process argument and affirmed the judge's power to issue a cease and vacate order under the Act.

The appeal was dismissed with costs.

The Retirement Homes Regulatory Authority (RHRA) brought an application seeking an order for the respondents to cease illegally operating a retirement home and to wind up their business.

The core issue was whether the respondents' facility met the definition of a retirement home under the Retirement Homes Act, specifically concerning the "administration of a drug or other substance." The court found that the respondents did administer drugs based on the ordinary meaning of the term, their own definition, and a purposive interpretation of the Act, which aims to protect vulnerable individuals.

The court also found other care services were provided.

Given the respondents' history of non-compliance and deliberate attempts to avoid regulation, the court granted the RHRA's request to shut down the premises, ordering it to be vacated within six months, and awarded costs to the applicant.

This decision addresses the costs of a summary judgment motion brought by the Plaintiff, Jackman Construction Limited, which was largely unsuccessful.

While the Plaintiff's motion for summary judgment was dismissed, some ancillary procedural relief was granted.

The parties were unable to agree on costs.

The court, applying Rule 57.01 of the Rules of Civil Procedure, found the Defendants, Collin Lee Brown and Cristen Lee-Ann Brown, were presumptively entitled to costs as they successfully dismissed the primary motion.

The court declined to award substantial indemnity costs, finding no "improper conduct" by the Plaintiff under Rule 20.06.

Partial indemnity costs were fixed at $28,421.36, inclusive of fees, disbursements, and HST, payable by the Plaintiff to the Defendants.

The plaintiff contractor brought a motion for summary judgment in a construction lien action, seeking $68,790.00 for home renovation work.

The defendant homeowners argued they had contracted with a different company, which had a penalty clause for late completion, and that the plaintiff either assumed that contract or was a subcontractor.

The court dismissed the motion, finding genuine issues for trial regarding the contractual relationships, credibility of witnesses, and the enforceability of the penalty clause, which could not be resolved on the written record.

The applicant sought declarations arising from the termination of a seasonal campground occupancy and a subsequent trespass arrest, asserting that the arrangement created a commercial tenancy and that eviction without a writ of possession was unlawful.

The court held the arrangement was a revocable licence, not a lease, because there was no conveyance of exclusive possession and the contractual documents expressly created a licence for seasonal recreational use.

Neither the Commercial Tenancies Act nor the Residential Tenancies Act, 2006 applied, and the licensor was entitled under the contract to revoke the licence for breach of campground rules.

After revocation, the applicant had no lawful authority to remain on the premises, and the police acted within their powers under the Trespass to Property Act in arresting him when he refused to leave.

The claim for damages for unlawful arrest, eviction, and reputational harm was dismissed.

The appellant, a mortgagee, appealed a motion judge's decision that granted priority to construction lien claimants over his registered third mortgage.

The Court of Appeal dismissed the appeal, affirming that the advances made by the mortgagee did not fall within the exceptions of s. 78(2) or s. 78(6) of the Construction Act.

The court held that advances must be "made in respect of" the mortgage and the intention to secure financing must operate prospectively to gain priority over liens.

The decision reinforces the general principle of priority for lien claimants and the onus on mortgagees to clearly fall within statutory exceptions.

The receiver brought a motion for directions to determine whether an appeal from a priority dispute order in a receivership lies to the Court of Appeal under the Bankruptcy and Insolvency Act or to the Divisional Court under the Construction Act.

The Court of Appeal held that because the motion judge's order was granted in reliance on jurisdiction under the Bankruptcy and Insolvency Act, specifically a receiver's application for directions under s. 249, the appeal route is to the Court of Appeal.

The Receiver brought a motion for directions to determine whether the Court of Appeal or the Divisional Court has jurisdiction over an appeal concerning a priority dispute between registered lien claimants and a registered mortgage in a receivership.

The motions judge held that a single judge of the Court of Appeal lacks jurisdiction to decide whether an appeal lies within the court's jurisdiction, as this must be decided by a three-judge panel.

The motion was adjourned to be heard by a panel.

The applicant, a successor in title to a property, brought an application to determine the amount owing under a Writ of Seizure and Sale filed against the property by the respondent for her former spouse's spousal support arrears.

The court held that the Writ only secured the spousal support arrears owing as of the date the property was transferred to the applicant, and did not attach to subsequent unpaid pension payments.

The court calculated the total amount owing under the Writ, including interest, and allowed the applicant to set off costs awarded against the respondent in previous litigation.

The Radford defendants brought a motion to set aside a noting of pleadings closed, with the plaintiffs bringing a cross-motion for default judgment, stemming from a real estate transaction involving soil contamination and an undertaking.

The court granted the defendants' motion, finding they had a credible intent to defend the action for amounts exceeding a $13,000 holdback, based on a reasonable, albeit mistaken, belief about their liability cap.

The court applied the Turner's Garage v. Shell test, emphasizing the full context and factual matrix, and found arguable defenses and no significant prejudice to the plaintiffs.

The defendants, Anthony and Karen Van Bakel, brought motions to transfer two related actions (the Purdy action from London and the Eedy action from Kitchener) to Goderich for trial, and for an order that the actions be tried together.

The Eedy plaintiffs opposed the transfer to Goderich.

The court granted the transfer, finding Goderich to be the most desirable venue in the interests of justice, citing its greater connection to the events, damages, parties, and witnesses, and a significantly shorter trial wait time compared to London.

The court also ordered the actions to be tried together or one immediately following the other.

The landlord, INCC Corp., sought a declaration to terminate a lease with its tenant, Oxford Medical Imaging Inc. (OMI), alleging insolvency and liquidation proceedings.

OMI sought to restrain termination and assign the lease to 2617949 Ontario Limited, arguing INCC unreasonably withheld consent.

The court found OMI was not insolvent, no liquidation proceedings were commenced, and INCC unreasonably withheld consent to the lease assignment.

Khatija Khatri, successful in an application to discharge instruments from her property title, sought substantial indemnity costs.

Talat Khan, the respondent, opposed, citing Khatri's delay and uncooperative conduct, and the reinstatement of a Writ of Seizure and Sale in a related action.

The court awarded Khatri substantial indemnity costs from the date of her offer to settle, acknowledging her success on the application.

However, the quantum was reduced due to both parties' litigation conduct and the applicant's significant delay in pursuing the application.

The final costs award of $33,206.33 was stayed pending the determination of costs in a related "Brampton action."

This decision addresses multiple motions in a long-standing family law enforcement action.

The court granted Khatija Khatri's application to vacate a Certificate of Pending Litigation (CPL) and other instruments from title to Bellwood Farm, finding the CPL had no legal basis after a prior order was set aside and the underlying application dismissed.

The court also granted Mohammad Munir Subhani and Khatija Khatri's motion to dismiss the action against them for inordinate and inexcusable delay, citing prejudice due to fading memories and health issues of key witnesses.

Talat Khan's motion for a new CPL was dismissed due to the dismissal of the action against those defendants and her own delay.

However, Talat Khan's motion for the reinstatement of a Writ of Seizure and Sale (No. 98-0259) was granted, as it was a support enforcement writ under the Family Law Rules and thus did not expire, and its removal was improper.

In a receivership proceeding, the Receiver sought to disclaim an agreement of purchase and sale (Grandview APS) between Horseshoe Valley Lands Ltd. (HVL) and Lotco Limited.

Lotco brought a cross-motion seeking to examine individuals to support its position that Romspen Investment Corporation (the mortgagee) had committed to HVL to grant a partial discharge of the mortgaged lots, and that Romspen's alleged default led to the receivership.

The court denied Lotco's request for examinations, finding that Romspen's alleged default to HVL was not relevant to the Receiver's disclaimer motion, as Romspen owed no direct contractual or other duty to Lotco, and the receivership order did not alter the substantive rights or equities between Lotco and Romspen.

The appellants appealed a judgment of the Superior Court of Justice.

The Court of Appeal found no error in the motion judge's reasons, noting that the appellants essentially reargued the motion.

The appeal was dismissed with costs awarded to the respondent.

The plaintiff brought a motion to set aside an administrative dismissal of her civil action for delay under Rule 48.14 of the Rules of Civil Procedure.

The dismissal resulted after counsel failed to diarize a status notice deadline, leading to the action being dismissed by the registrar.

The court applied the contextual analysis articulated in Reid v. Dow Corning Corp. and Scaini v. Prochnicki, considering the explanation for delay, inadvertence in missing deadlines, promptness of the motion to set aside, and prejudice to the defendant.

Although counsel’s conduct bordered on negligence, the court found the plaintiff had always intended to pursue the litigation and that the motion was brought promptly once the dismissal was discovered.

Finding no significant prejudice to the defendant, the court set aside the administrative dismissal and allowed the action to proceed.

The appellants appealed a trial judgment awarding damages against them for failing to pay amounts owed under agreements for the purchase of an operating gravel pit.

The appellants argued they were induced to enter the agreements by oral warranties and promises made by the respondents, which were breached.

The Court of Appeal dismissed the appeal, deferring to the trial judge's factual findings that no such oral undertakings or warranties were made, noting the appellants were represented by experienced counsel and the alleged warranties were not included in the written documents.

The appellants appealed the denial of their motion to set aside a noting in default.

The Court of Appeal found that the motion judge erred by focusing solely on whether the appellants had formed an intent to defend before the deadline, failing to consider the full factual matrix, including the appellants' fear of attorning to the jurisdiction.

Finding no evidence of an intent to flout the rules, no inordinate delay, and no prejudice to the respondent, the Court allowed the appeal and set aside the noting in default.

The appellants requested to re-open the appeal for further argument on the correct Initial Fair Market Value date for a property.

The Court of Appeal denied the request, noting that the interpretation of the agreement regarding the valuation date was not directly addressed at trial or on appeal, but arose indirectly regarding whether an enforceable agreement existed.

The Court held that the issue of the valuation date was not central to the appeal and that the record amply supported the trial judge's finding of a valid oral agreement.

The interpretation of the agreement was left to be resolved by an arbitrator.