George Francis Vella

The applicant condominium corporation sought an order requiring the respondent unit owners to enter into a section 98 agreement regarding a deck installed on the common elements, remove a satellite dish, and pay for water damage caused by a leak.

The court granted the order regarding the deck, finding it was an addition or improvement requiring an agreement under the Condominium Act.

However, the court dismissed the requests regarding the satellite dish and the water leak, finding the respondents had prior approval for the dish and the applicant failed to prove the respondents' unit caused the leak.

The applicant sought to vary his child support obligations, arguing for a reduction based on his corporate income and losses.

The respondent sought to increase the applicant's income by adding back various corporate deductions and imputing hypothetical interest and tip income.

The court largely rejected the respondent's proposed additions for automotive expenses, amortization, non-arm's length salary, and hypothetical interest, finding the forensic accountant's testimony problematic.

However, the court agreed to add back child support improperly deducted as a company expense and grossed-up tip income.

The court calculated the applicant's income for child support purposes for several periods, resulting in adjusted monthly payments, and maintained the 50/50 split for Section 7 expenses as per the original agreement.

In a family law proceeding, the respondent father brought a motion to quash two summonses to witness issued by the applicant mother to his doctor and his former solicitor.

The father argued the evidence was protected by doctor-patient confidentiality and solicitor-client privilege.

The court quashed the summons for the doctor, noting the father consented to releasing the requested prescription records, making the doctor's attendance unnecessary.

However, the court upheld the summons for the solicitor, finding the father had implicitly waived solicitor-client privilege by summarizing and relying on the legal advice in his sworn statements to explain his failure to seek access to his child.

The Administrator of a condominium corporation applied for directions regarding the voting procedure for the election of a new board of directors, following a referendum where owners voted to return to a board-managed structure.

The court provided directions on the election process, including that the owner-occupier position under s. 51(6) of the Condominium Act would be for a three-year term, that unsuccessful candidates for that position could run for the remaining positions, and that a retired judge would supervise the meeting.

Following a successful application concerning the disposition of funds held in trust, the court addressed the costs payable to a responding party that had been unsuccessful on the merits but was entitled to costs under the terms of the earlier order.

The party sought costs on a substantial indemnity basis or alternatively on a partial indemnity basis, while the opposing party argued that only partial indemnity costs were appropriate and challenged the hourly rates claimed.

The court held that substantial indemnity costs were not justified but accepted the reasonableness of the partial indemnity hourly rates claimed.

However, the total amount sought was considered higher than the reasonable expectations of the party exposed to the costs award.

The court therefore fixed an all-inclusive costs award on a reduced partial indemnity basis.

The applicant law firm, Thomas Gold Pettingill LLP, applied for a declaration regarding $61,351.64 held in trust from a settlement, which was claimed by both the respondent former client, Ani-Wall, and the respondent former law firm, Cassels Brock.

The funds represented an unpaid legal account.

The court found that while the applicant lawyer breached a personal undertaking and could not unilaterally bind the client to an equitable assignment, the former law firm was entitled to a charging lien over the funds.

The court held that the charging lien was not subject to a limitation period, unlike the underlying contract claim.

The court ordered the funds to be subject to the charging lien but allowed the former client to seek an assessment of the accounts due to special circumstances.

The plaintiff subcontractor registered a claim for lien for concrete foundation work.

The defendants argued the lien was registered out of time.

The plaintiff claimed it attended the site on February 19, 2009, to cut ties and chip concrete, which would bring the April 6, 2009 registration within the 45-day limit.

The court found the February work was to rectify minor deficiencies and amounted to an attempt to bootstrap the claim for lien.

The court held the lien expired because the time for preservation began running when the substantive work was completed in November 2008.

The applicant sought leave to appeal an order dismissing its motion to remove and replace the administrator of a condominium corporation.

The applicant argued the motion judge erred in principle in applying the test for replacing an administrator under the Condominium Act.

The Divisional Court found no good reason to doubt the correctness of the motion judge's order, noting she had properly assessed the evidence and applied the correct test.

The court also found the matter did not transcend the interests of the parties.

The motion for leave to appeal was dismissed with costs.

The appellant real estate agency appealed a Master's decision refusing leave to amend its statement of claim to add a claim for constructive trust based on unjust enrichment for an unpaid commission.

The appellant sought a constructive trust over $173,840 of the purchase funds deposited in a solicitor's trust account.

The Divisional Court dismissed the appeal, finding that the relationship between a vendor and a real estate agent is that of debtor and creditor, not a trust relationship.

The pleadings failed to establish a nexus between the services rendered and the property, or that a monetary remedy would be inadequate.

Following the dismissal of the appellants' appeal, the successful respondents sought costs of $31,804.58.

The appellants submitted that costs should be fixed at $20,000.

The Divisional Court agreed with the appellants, fixing costs at $20,000 inclusive, noting that this amount was fair, reasonable, and proportionate to the amount at issue.

The appellants appealed an order requiring them to pay $5,500 for the removal of illegally placed barrels and $4,000 in costs, arguing the applications judge breached natural justice by denying an adjournment.

The Divisional Court found no error in principle or failure to act judicially in the denial of the adjournment, noting no evidence of prejudice to the appellants.

The appeal was dismissed with costs fixed at $3,500.

The appellant appealed an order dismissing his application to replace the Court Administrator of a condominium corporation.

The Court of Appeal found no error in the motion judge's analysis or conclusions and dismissed the appeal, awarding costs of $3,000 to the respondent.