Harvey Joseph Ash

The moving party, the Estate Trustee, sought an order for possession of a condominium unit, which was the sole significant asset of the deceased's estate.

The responding party, the deceased's son and sole residual beneficiary, resided in the unit and opposed the motion, seeking a stay pending his application against the Estate Trustee for negligence and misfeasance.

The court declined to stay the motion, finding that the Estate Trustee was acting within his authority to sell the unit to pay estate debts and ongoing expenses.

The court granted the order for possession, adjourning the request for a writ of possession to allow the responding party time to find alternative accommodations.

Following reasons for judgment in two related applications regarding a commercial lease, the successful parties, The Tire Pit Inc. and Michael Goldlist, sought costs on a substantial indemnity basis.

The court found that the conduct of the unsuccessful parties did not rise to the egregious level required for substantial indemnity costs.

The court awarded partial indemnity costs, ordering Augend and Charles Bulmer jointly and severally to pay $36,000 to The Tire Pit Inc., and Augend to pay $31,000 to Michael Goldlist.

Augend, the new owner of a commercial property, brought an application seeking a declaration that the lease with the tenant, Tire Pit, had expired and seeking vacant possession.

Tire Pit brought a companion application seeking a declaration that it had validly exercised its option to extend the lease for another five years.

The court found that Tire Pit had personally delivered written notice of its intention to extend the lease to the former landlord at his home, more than six months before the lease expired.

Although the lease prescribed notice by registered mail or courier, the court applied the principle that actual notice by a no less advantageous method is valid where the lease does not strictly exclude other methods.

The court declared the lease validly extended and dismissed Augend's application.

The applicant sought a declaration of ownership by adverse possession over a narrow strip of backyard land enclosed by a long-standing fence between neighbouring residential properties.

The court held that the applicant and his predecessors had established actual possession, intention to exclude, and discontinuance of possession by the true owner for the statutory period before conversion to land titles.

The court treated the case as one of mutual mistake rather than knowing trespass, lowering the threshold for intention to exclude.

The application was granted and the land registrar was ordered to amend the parcel register accordingly.

The plaintiff sought clarification on a request for costs against his former counsel under Rule 57.07(1) of the Rules of Civil Procedure.

The court held that Rule 57.07(1) applies only to a 'lawyer for a party' and not to a former lawyer whose retainer had ended.

Furthermore, the court found insufficient evidence to conduct the required holistic examination of the former counsel's conduct.

The request for costs against the former lawyer was dismissed.

On competing motions in a property and trust dispute arising from a commercial and residential real estate purchase, the court addressed service, pleading amendments, and the continued registration of a certificate of pending litigation.

The court declined to strike an impugned affidavit of service, but validated service of the amended statement of claim on one defendant as of the date she clearly had notice, with leave to plead a limitation defence.

Extensive amendments were granted in part where they arose from the same core factual nexus, but inflammatory and immaterial allegations relating to criminal charges and certain improper claims were disallowed.

The request to discharge the certificate of pending litigation was refused because the action had been prosecuted with reasonable diligence despite counsel changes and procedural irregularities.

Each party was ordered to bear his own costs given divided success.

The appellant appealed a trial judgment, arguing the trial judge applied the incorrect standard of proof, made erroneous credibility findings, and improperly drew adverse inferences from his failure to testify.

The respondent cross-appealed the trial judge's decisions regarding the interest rate and costs.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the trial judge correctly applied the balance of probabilities standard, made no palpable and overriding error in credibility findings, and properly exercised his discretion regarding adverse inferences, interest, and costs.

The respondents built an addition to their home that encroached on a private right-of-way shared with the appellants.

The right-of-way was granted for vehicular ingress and egress.

The application judge found that the encroachment did not substantially interfere with the appellants' ability to use the laneway for its granted purpose and dismissed the application.

The Court of Appeal upheld the decision, confirming that an encroachment on a private right-of-way, even by a permanent structure, is only actionable if it substantially interferes with the dominant owner's reasonable use of the right-of-way.

The appellant client appealed a Small Claims Court judgment ordering him to pay outstanding legal fees to the respondent lawyer.

The appellant argued the trial judge made several errors of law, including failing to consider the factors for assessing a lawyer's account and making improper evidentiary rulings.

The Divisional Court dismissed the appeal, finding no errors of law and concluding that the trial judge's findings of fact did not amount to palpable and overriding errors.

An experienced private mortgage lender advanced $100,000 secured by a first mortgage in a property transaction that proved to be fraudulent.

The borrower admitted participating in the fraud but died without assets.

The central issue at trial was whether the solicitor who acted for both borrower and lender or the mortgage broker was responsible for orchestrating the scheme.

The court accepted corroborated evidence that the solicitor was the architect and principal beneficiary of the fraud, drawing adverse inferences from his failure to testify and from suspicious documents in his file.

Judgment was granted for the lender for her losses with prejudgment interest and punitive damages, and the third‑party claim against the broker was dismissed.

The applicants, owners of adjacent properties, sought a declaration that the respondents unlawfully obstructed a shared right-of-way by constructing an addition to their home.

The right-of-way was granted for the purpose of vehicular ingress and egress to the applicants' garages.

The court found that while the addition permanently occupied a portion of the right-of-way, it did not substantially interfere with the applicants' ability to access their garages by vehicle.

The application was dismissed, as the encroachment did not constitute an actionable interference with the specific limited purpose of the right-of-way.

The appellants appealed a trial judgment holding the personal appellant liable for the unsafe investment of the respondent's money.

The Court of Appeal dismissed the appeal, finding ample evidence to support the trial judge's conclusion that the investment was meant to be safe but was not.

The Court also upheld the finding of personal liability based on a direct relationship between the personal appellant and the respondent, noting this was not a corporate veil case.

The appellant appealed a Master's order striking his Statement of Defence for failing to fully comply with undertakings and prior court orders.

The Divisional Court applied the standard of review from Housen v. Nikolaisen, finding that the Master's decision was supported by the evidence and involved no error of law or principle.

The appellant had been given multiple warnings and opportunities to comply but failed to do so.

The appeal was dismissed with costs awarded to the respondents.

The applicant sought a finding of civil contempt against the respondent for breaching a prior court order prohibiting him from practising law or providing legal services contrary to s. 26.1 of the Law Society Act.

The respondent, a disbarred lawyer, sent correspondence on letterhead identifying himself as a paralegal and offering to negotiate settlement of a civil action on behalf of defendants.

The court held that the order was clear and that the respondent deliberately held himself out as providing legal services and negotiating legal rights despite being prohibited from doing so.

The evidence established contempt beyond a reasonable doubt and the court rejected arguments that the conduct was minor or inadvertent.

Considering the respondent’s history and lack of remorse, the court imposed a custodial sentence to achieve denunciation and deterrence.

The appellant appealed a summary judgment dismissing her action to invalidate a home renovations contract and associated loan agreement.

She alleged her signatures on the contract were forged.

The Court of Appeal upheld the motion judge's finding that there was no genuine issue requiring a trial, noting the appellant failed to provide corroborative evidence of forgery to counter the respondent's contemporaneous documentary evidence.

The appeal was dismissed with costs.

The appellant appealed a trial decision finding a valid agreement to split settlement funds 50/50 with the respondents.

The Divisional Court dismissed the appeal, holding that the trial judge did not err in finding a valid agreement, implying a reasonable term for the split, or rejecting the argument that the agreement was unenforceable for illegality due to an undertaking given to the insurer.

Costs of $6,000 were awarded to the respondents.

The appellant appealed the dismissal of his fraudulent conveyance action against the respondent.

The appellant sought to set aside a 1997 transfer of the matrimonial home from the judgment debtor to the respondent.

The Court of Appeal upheld the trial judge's findings that the transfer was part of a comprehensive settlement following marriage breakdown, not made with intent to defeat creditors, and was supported by good consideration in good faith.

The appeal was dismissed.

Following the dismissal of the appellant's appeal of a summary judgment order, the respondents sought costs of the appeal on a substantial indemnity basis.

The Divisional Court found no evidence of bad faith to justify substantial indemnity costs.

Taking into account the quantum of the claim, the costs previously awarded, and the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, the court awarded partial indemnity costs of $5,000 to the respondent Gaydon and $3,500 to the respondent Burger King.