Emily C. Durst

The moving party brought a motion for an extension of time for leave to appeal the decision of R.E. Charney J. The Divisional Court granted the extension of time but dismissed the motion for leave to appeal.

No costs were ordered as the responding party failed to provide a costs outline.

Jennings Lodge Inc. sought an interlocutory injunction to prevent the Canadian Mental Health Association (CMHA) from relocating residents from Jennings Lodge, a facility transitioning from a licensed home for special care to a Community Homes for Opportunity (CHO) program.

The dispute arose from CMHA's termination of a Transfer Payment Agreement (TPA) with Jennings Lodge.

The court applied the RJR-MacDonald test, finding a serious issue regarding the enforceability and unconscionability of the TPA's termination clause due to unequal bargaining power.

Irreparable harm was found for Jennings Lodge's business reputation and operation, and for the vulnerable residents who were not consulted and treated as "chattels." The balance of convenience favored Jennings Lodge, as it faced significant loss while CMHA asserted no harm.

The injunction was granted, restraining CMHA from relocating residents until the claim's resolution or January 22, 2025.

The plaintiffs brought a motion under Rule 30.06 for broad documentary production from the Township, including by-laws and records dating back to 1966, related to two properties.

The Township argued it had already fulfilled its production obligations.

The court found the parties' "discovery plan" inadequate and emphasized the mandatory nature of proper discovery planning and proportionality (Rules 29.1.03, 29.2.03).

The court determined that only documents related to the "legally non-conforming use" of the Subject Property were relevant based on the pleadings.

The motion was largely dismissed, with the exception of an order for the Township to disclose and produce its current zoning by-law (no. 30-1999), which was deemed relevant to the non-conforming use issue.

Costs were ordered to be borne by each party due to the failure to engage in meaningful discovery planning.

This decision addresses the applicant's request for costs following a successful application.

The applicant sought substantial or partial indemnity costs, while the respondent failed to submit responding cost submissions.

The court reviewed the bill of costs, noting the litigation's seven-year duration, over 10 court appearances, and the respondent's deliberate delays, disobedience of court orders, and frivolous allegations, which complicated the proceedings and led to duplication of effort by counsel.

Despite the respondent likely being judgment proof, the court fixed the applicant's costs at $50,000, inclusive of disbursements and HST, considering the circumstances and the respondent's conduct.

The successful plaintiff, Mettko Construction Ltd., sought substantial indemnity costs after being awarded damages at trial.

The defendant, Hauser Realty Corp., argued for partial indemnity, asserting that Mettko's Rule 49 offer to settle was implicitly withdrawn by subsequent settlement negotiations and that the quantum sought was unreasonable.

The court found that Mettko's Rule 49 offer was indeed withdrawn by implication due to later offers.

While acknowledging Mettko's success and the importance of the issues, the court also considered factors such as the evolving nature of Mettko's case theory and multiple changes in counsel, which contributed to increased costs.

The court ultimately awarded Mettko $225,000 in all-inclusive costs, deeming it a reasonable and proportionate amount for the unsuccessful party to pay, rather than the $456,609.81 sought.

The plaintiff construction management company sued the defendant property owner for wrongful termination of a pre-construction and construction services contract.

The defendant argued the termination was justified because the plaintiff repudiated the contract by failing to perform core duties, meet the target budget, and meet the completion date.

The court found that the plaintiff continued to perform its duties, the budget and timeline delays were caused by design and permitting issues outside the plaintiff's control, and the plaintiff did not repudiate the contract.

The court held the defendant terminated the contract without justification and awarded the plaintiff $281,345.52 in damages for lost profits and outstanding invoices, subject to the contractual interest rate.

The Ontario Aboriginal Housing Support Services Corporation (OAH) applied for a declaration that Patricia Ann Aho was a trespasser at 239 Earl Road and for a writ of possession.

Ms. Aho had temporarily occupied the Earl Road property after her original mortgaged home became uninhabitable.

The court found an oral agreement existed where Ms. Aho was to continue mortgage payments for her original property while OAH covered normal maintenance at Earl Road.

Ms. Aho breached this agreement by ceasing mortgage payments in 2005, claiming offsets for expenses OAH was not obligated to cover.

The court declared Ms. Aho a trespasser and granted OAH possession, with a 120-day stay to allow Ms. Aho to apply for subsidized housing.

The defendants brought a motion for leave to appeal an order of Valente J. dated April 6, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to His Majesty the King in the Right of Ontario in the amount of $1,822.50.

The moving party brought motions for leave to appeal two interlocutory decisions.

The respondents requested that the motions be dismissed under Rule 2.1 of the Rules of Civil Procedure as frivolous, vexatious, or an abuse of process.

The court dismissed the motion for leave to appeal the scheduling decision, finding it was moot and sought unavailable relief.

However, the court declined to dismiss the motion for leave to appeal the decision denying leave to examine witnesses, as the primary relief sought was not challenged under the Rule 2.1 process.

The plaintiff brought a motion to compel production of financial documents from the defendant HouseSigma Inc. for the purpose of valuing shares in an oppression claim, arguing that the valuation date could be the date of trial.

HouseSigma Inc. resisted, arguing irrelevance and prejudice, and brought a cross-motion to compel the plaintiff to produce personal and corporate financial documents for wrongful dismissal damages and mitigation.

The court found the HouseSigma documents relevant for valuation and ordered production to the present.

The court also ordered the plaintiff to produce personal and corporate financial records from 2015-2018, finding them relevant to pre-employment income and mitigation of damages.

This decision addresses costs arising from a previous ruling where the Ellison Defendant's motion for leave to examine witnesses was denied, and motions by the plaintiffs, the Crown, and Iler Campbell LLP to quash summonses were granted.

The successful parties sought costs, with the plaintiffs and Iler requesting substantial indemnity due to the Ellison Defendant's conduct, which included voluminous, unhelpful, and amended materials, and an abuse of process by issuing irrelevant summonses to delay proceedings.

The Crown sought partial indemnity costs.

The Ellison Defendant did not submit costs arguments.

The court found the Ellison Defendant's conduct unnecessarily lengthened proceedings and constituted an abuse of process.

While not egregious enough for full substantial indemnity, the conduct warranted more than partial indemnity.

The court fixed costs for the plaintiffs, Iler, and the Crown, ordering the Ellison Defendant to pay.

The appellants appealed a motion judge's order lifting a stay of proceedings under the Bankruptcy and Insolvency Act (BIA) and amending a default judgment to declare the debt non-dischargeable in bankruptcy under s. 178(1)(d) BIA, on the basis that it arose from misappropriation or defalcation while acting in a fiduciary capacity.

The underlying action involved breach of statutory trust under the Construction Act for unpaid construction materials.

The Court of Appeal affirmed the motion judge's decision, finding no error in the refusal to admit extrinsic evidence contradicting deemed admissions from the default judgment, nor in considering the appellants' non-compliance with enforcement orders.

The court upheld the finding that the judgment debt arose from misappropriation or defalcation, emphasizing that the deemed admissions, including an award of punitive damages, demonstrated intentional wrongdoing and conduct markedly departing from ordinary standards of decent behaviour, satisfying the "moral turpitude or dishonesty" threshold for s. 178(1)(d) BIA.

The moving party brought a motion for leave to appeal an order dated December 29, 2022.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $7,500 to the respondents.

PC Forge, a manufacturer of custom forgings, sued BRC Motorsport Inc. for breach of contract and moved for summary judgment.

The parties had an agreement where PC Forge would pre-order raw materials and inventory forgings to reduce lead times, with BRC committing to pay for all purchase orders.

BRC repudiated the contract, failing to pay for a significant portion of ordered and manufactured goods.

The court found a clear contract existed, BRC breached it, and BRC's attempt to rely on unauthenticated terms and conditions was rejected.

The court also found that PC Forge had made reasonable efforts to mitigate its losses.

Summary judgment was granted in favour of PC Forge for damages totaling $205,907.24 plus pre- and post-judgment interest.

The plaintiff, Magil Construction Canada Inc., brought motions seeking to vary a previous order, amend a third-party claim due to corporate amalgamation, and join several proposed third parties under the Construction Act.

The court dismissed the motion to vary the previous order, finding it unnecessary and that the plaintiff failed to meet the requirements of Rule 59.06.

However, leave was granted to amend the third-party claim to reflect the amalgamation and to join Mattina Mechanical Limited, Sola Engineering Inc., and Innocon Inc. as third parties.

The joinder of IFAB Engineering Partners Ltd. was resolved by consent.

The court rejected Innocon's arguments that the third-party claim was a nullity and that the claim against it was statute-barred, finding no undue prejudice or delay would result from the joinder.

The moving party sought an extension of time to file notices of appeal from two orders that dismissed her previous proceedings as frivolous, vexatious, and an abuse of process.

The court considered the factors for granting an extension, including intention to appeal, length of delay, prejudice to the responding parties, and the merits of the appeal.

Finding no reasonable explanation for the lengthy delay, obvious prejudice to the responding parties, and that the proposed appeals were devoid of merit, the court dismissed the motion.

The defendants brought a motion for leave under the Construction Act to seek security for costs against the plaintiff.

The plaintiff had sued for unpaid invoices and lost profits after the defendants terminated a construction contract due to a loss of financing.

The court found good reason to believe the plaintiff, a formerly dormant shell corporation with no apparent assets, had insufficient assets in Ontario to pay a costs award.

The plaintiff failed to demonstrate sufficient assets or that its claim had a good chance of success.

The court granted leave and ordered the plaintiff to post $201,765.54 as security for costs, staying the action until payment.

The Court-appointed Receiver of Northwood Recycling & Energy Inc. moved for an order to relinquish assets subject to BNG Financial's purchase money security interest (PMSI) and to pay BNG $5,000 from the sale of a mixer.

BNG brought a cross-motion seeking compensation for the Receiver's use of the equipment during the receivership and for its diminished value.

The court granted the Receiver's motion and dismissed BNG's cross-motion, finding that BNG failed to establish a claim for unjust enrichment or breach of duty by the Receiver, as BNG could have taken steps to realize on its security at any time.

The applicant brought a motion to strike the self-represented respondent's affidavit after she failed to provide a witness list for trial as previously ordered.

The respondent offered no valid explanation for her non-compliance, asserting only that the applicant would interfere with her witnesses, and stated she would proceed on her own.

The court declined to strike the affidavit but directed the trial of an issue to proceed with strict time limits and a condition that the respondent may testify but cannot call any other witnesses.

The defendants brought a motion to strike two statements of claim issued by the self-represented plaintiff, which alleged defamation and misrepresentation related to the transfer of cord blood samples.

The court struck the defamation claims without leave to amend, finding the allegedly defamatory statements were not made by the defendants and did not refer to the plaintiff.

The misrepresentation claims were struck with leave to amend for failing to plead material facts with sufficient particularity.

Several paragraphs were also struck as scandalous, frivolous, or vexatious.

The court ordered the two actions consolidated.