Gosia Bawolska

This costs endorsement follows the dismissal of the action by Gloria Rajkumar and the family trust against Roger Rajkumar, and the granting of the counterclaim by Rita Rajkumar against Gloria and the Simac companies.

The court awards costs to Roger and Rita, applying the principles of partial and substantial indemnity, and addresses the reasonableness of the amounts claimed, the effect of a Rule 49 offer, and the connection between the main action and the counterclaim.

In supplementary reasons, the Court of Appeal addressed an error in the application judge's formal judgments regarding the continuation of a right of survivorship after a joint tenancy was severed into a tenancy in common.

The court granted the respondent leave to cross-appeal without a formal notice, varied the judgments to extinguish the right of survivorship, and issued a vesting order transferring 100% of the beneficial interest in the property to the respondent as the beneficiary of a resulting trust.

This appeal concerned the effect of two gratuitous transfers of property into joint tenancy.

Nigel Jackson transferred his home into joint tenancy with Lori Rosenberg, intending to gift only a right of survivorship to avoid probate fees, while retaining control during his lifetime.

Later, he severed the joint tenancy.

The application judge found a partial resulting trust, concluding that only the right of survivorship was gifted and that Jackson retained the right to sever.

Rosenberg appealed, arguing for a full beneficial interest and that the severance was ineffective.

The Court of Appeal dismissed Rosenberg's appeal, affirming that a gift of a right of survivorship can exist without immediate beneficial rights and that the donor retains the unilateral right to sever the joint tenancy, thereby ending the right of survivorship.

The court also clarified that no right of survivorship could subsist after severance.

The court convened a case conference for four related product liability actions involving fires allegedly caused by defective ventilation units.

After four years of case management, the court discovered that counsel for the defendant had failed to disclose numerous other actions across the province involving the same parties and identical issues, including one that had already proceeded to trial.

Citing counsel's lack of candor and repeated failure to comply with court orders, the case management judge struck the actions from the trial list and declined to continue case managing them.

The Public Guardian and Trustee, acting as litigation guardian for Jack Dutton, sought an order to sell a jointly owned condominium without the consent of his wife, Mabel Dutton, due to financial necessity for their long-term care.

Mabel opposed the sale and challenged the validity of a Power of Attorney and a prior Agreement of Purchase and Sale (APS).

The court found the APS invalid due to lack of Mabel's consent to the extension of the closing date.

However, applying the Partition Act, the court ordered the sale of the condo, dispensing with Mabel's consent, as it was in Jack's best interest and Mabel's opposition was not sufficient to deny the prima facie right to partition and sale.

The court refused to order specific performance of the invalid APS to the original buyers.

The third party, Fasco Motors Limited, sought costs following its substantial success on a motion to compel the defendant, Venmar Ventilation Inc., to answer refusals from an examination for discovery.

The underlying action involved a fire loss allegedly caused by a malfunctioning heat recovery ventilator.

The court awarded the third parties costs on a partial indemnity scale, fixing fees at $5,000 and disbursements at $4,600, inclusive of HST.

The third parties brought a motion to compel the defendants to answer questions and provide undertakings refused during the examination for discovery of the defendants' witness.

The underlying action involves a house fire allegedly caused by a heat recovery ventilator manufactured by the defendants, which contained a motor manufactured by the third parties.

The court ordered the defendants to answer the majority of the refused questions, finding them relevant to the adequacy of the defendants' safety upgrade program and their appreciation of the fire risk.

The appellant appealed a decision dismissing his application for a declaration of ownership and exclusive use of a disputed strip of land based on adverse possession.

The strip had been enclosed by a fence between two properties from December 1992 to December 2002.

The application judge found that while actual possession was established, the appellant failed to prove the requisite intention to exclude the true owner or effective exclusion.

The Court of Appeal upheld the dismissal, finding no errors of law or principle in the application judge's reasoning and confirming that the presumption of intention to exclude arising from a fence is not mandatory and may be rebutted by the absence of corroborating evidence.

This endorsement addresses the protracted litigation of three third-party actions arising from fire losses, where the defendant Venmar Ventilation Inc. (third-party plaintiff) seeks payment from Fasco Industries Inc. (third-party defendant) for alleged defects in a motor.

The case management judge expressed frustration over the slow pace and non-compliance with previous court orders.

The judge issued new orders to compel both parties to complete outstanding productions, file trial records, and deliver expert reports to advance the matters to trial.