Howard D. Gerson

This costs endorsement follows a successful application by Figaro Dominion Ltd. and Figaro Gate Ltd. for a permanent injunction restraining the developer from obstructing a laneway and parking behind the applicants’ units.

The court awarded the applicants $33,000 in costs against the developer and awarded the Church full indemnity costs of $68,076.53, also payable by the developer.

The decision addresses the scale and quantum of costs, the effect of settlement offers, and the application of an indemnity clause in a Crane Swing Agreement.

The Applicants, commercial landlords, sought a permanent injunction against the Developer and the Church regarding the use of a right-of-way (ROW) over a laneway behind their properties.

The court found that the Developer’s construction activities, including staging, parking, and storage, substantially interfered with the Applicants’ use of the ROW, particularly for parking and access by tenants and customers.

The court granted a permanent injunction restraining the Developer from obstructing the laneway and from allowing its workers to park directly behind the Applicants’ units, but declined to order removal of all construction equipment due to the stage of construction and delay in seeking relief.

The applicant landlord, Java Investments Limited, applied for a declaration that its commercial lease with the tenant, Tkaronto Trees, was lawfully terminated, and sought to set aside a municipal barring order closing the premises due to unlicensed cannabis sales.

The tenant argued it had an indigenous sovereign right to operate the dispensary and was not subject to provincial cannabis laws.

The court held that provincial laws applied to the premises and implied terms into the lease requiring compliance with provincial law and prohibiting the tenant from exposing the landlord to prosecution.

Because the tenant breached these implied terms, the court declared the lease validly terminated, denied relief from forfeiture, set aside the barring order, and granted a permanent injunction and eviction order.

This costs endorsement follows the granting of interlocutory relief to Parkland Corporation in a lease dispute.

The court awards partial indemnity costs to Parkland, finding the respondents' conduct did not rise to the level warranting substantial indemnity.

The decision discusses the principles governing costs, including proportionality, misconduct, and the timing of costs awards.

The decision concerns Parkland Corporation’s motion for interlocutory relief to enforce negative covenants in a lease requiring Caledon Fuels Inc. to operate a gas station as an Ultramar station with fuel supplied by Parkland.

The court grants Parkland leave to register a certificate of pending litigation (CPL) and issues an injunction against Caledon and the purchaser, 16408117 Canada Inc., from breaching the lease.

The ruling addresses the legal tests for a CPL and interlocutory injunction, the effect of actual notice of a lease under the Land Titles Act, and the balance of convenience between the parties.

In a supplementary costs endorsement, the court reviewed the respondents' late-filed Costs Outlines.

The respondents argued that their costs were substantially lower than the applicant's, pointing to differences in the number of counsel billing and hourly rates.

The court found the applicant's counsel's higher hourly rate to be within the reasonable market range and noted that the respondents' outline omitted time spent by another lawyer on the file.

The court concluded that the new information did not alter its prior finding that the applicant's costs were reasonable.

Following the granting of interlocutory injunctions against the respondents, the applicant sought costs on a substantial indemnity basis.

The court found that the respondents engaged in deliberate and high-handed conduct by attempting to unilaterally terminate commercial leases and evict the applicant without legal basis, aiming to frustrate the court proceedings.

The court exercised its discretion to award costs immediately rather than reserving them to the trial judge, fixing costs at $58,000 and $45,000 payable forthwith on a substantial indemnity scale.

Parkland Corporation sought an interlocutory injunction to prevent SRAA Inc. and 1064110 Ontario Ltd. from unilaterally terminating their gas station leases and subleases to re-lease the properties to a competitor selling Esso brand fuel.

The respondents argued the agreements were essentially fuel supply contracts and that they were operating at a loss.

The court found that the respondents deliberately breached their contracts and that Parkland would suffer irreparable harm from the loss of control over the sites.

The court granted the interlocutory injunctions, enforcing the leases and the negative covenants in the subleases pending a final determination.

This endorsement addresses scheduling and the presiding judge for summary judgment motions brought by two defendants, Frank Zito and Alan Keery.

The judge, appointed under Rule 37.15 to hear all motions in the action, extended a deadline for one defendant's materials and established a new timetable for the motions.

However, citing policy considerations akin to those in Rule 50.10(1) and the Court of Appeal's decision in Royal Bank of Canada v. Hussain, the judge declined to hear the summary judgment motions because the plaintiff did not provide written consent as required by Rule 37.15(2) for a Rule 37.15 judge to preside over a trial-like proceeding.

The judge will continue to hear procedural motions in the action.

The plaintiff, Gamble & Rogers Limited, sought leave to register a certificate of pending litigation (CPL) against a property, alleging a fraudulent conveyance by one of the defendants, Dany Carvalho, to his wife, Rosa Carvalho.

The plaintiff claimed Dany had promised a collateral mortgage on the property to secure a debt owed by Horizon Meat Packers Inc., a company he co-owned, and then fraudulently transferred his interest in the property for no consideration to defeat creditors.

The defendants argued there was no interest in land to support a CPL and that the transfer was for good consideration based on an earlier share transfer.

The court found the plaintiff established a prima facie case of fraudulent conveyance and that an interest in land was in question, granting leave to register the CPL.

This addendum addresses costs submissions following a prior decision that fixed terms of a Full and Final Release and made no order as to costs.

The applicant sought $2,500 in costs, relying on an informal offer to settle made four days before the motion.

The respondents opposed, citing their own offers and procedural issues, arguing against altering the original costs decision.

The court, after considering all submissions, caselaw, and Rule 57.01, maintained its original decision that each party should bear their own costs, noting that the lawyers had not acted reasonably concerning a mutual release.

The applicant and respondents, neighbours, settled an encroachment dispute, with a term requiring a mutual release.

Disagreement arose regarding the release's terms, specifically whether the applicant's wife, Lynn Horton, should be included and the effective date of the release.

The respondents brought a motion under Rule 49.09 to enforce the settlement by settling the terms of the mutual release.

The court found that the inclusion of the applicant's wife and an effective date up to the signing of the final release was reasonable, given previous agreements between counsel and the parties' desire for a "clean break" from a contentious neighbourly relationship.

The court ordered the mutual release to include both the applicant and his wife, effective to the date of signing.

No costs were awarded.

The appellants appealed a motion judge's decision dismissing their action as an impermissible collateral attack on a decision of the Deputy Director of Titles.

The Court of Appeal allowed the appeal, finding that the motion judge failed to address the appellants' request for an extension of time to appeal the Land Titles Decision.

The Court noted that one of the appellants had been acquitted of fraud in a related criminal trial, which contradicted the Deputy Director's findings, and that there were concerns about procedural fairness at the Land Titles hearing.

The action was reinstated to allow the appellants to bring a proper motion for an extension of time.

The appellants appealed a motion judge's declaration that an option agreement was valid.

The appellants argued the agreement failed to comply with s. 50(21) of the Planning Act because it did not expressly refer to s. 50, but only to the Act in general.

The Court of Appeal dismissed the appeal, holding that making the agreement conditional upon compliance with the Act as a whole was sufficient to satisfy the statutory requirement, as it is impossible to comply with the Act without complying with s. 50.

The plaintiffs moved to amend their statement of claim to include allegations regarding the defendants' instructions to their counsel in a related proceeding.

The court dismissed the motion, finding the proposed amendments irrelevant and immaterial to the issues pleaded.

The court also addressed the defendants' motion to compel answers to undertakings, finding the plaintiffs liable for the costs reasonably attributable to securing the undertakings.

At a commercial list case conference in complex multi-party litigation involving disputed financial transactions, the court addressed case management issues relating to discovery planning.

The parties agreed to a joint litigation and discovery plan aimed at identifying disputed transactions and clarifying the parties’ positions.

The court ordered that all undertakings arising from examinations for discovery be answered within 60 days and expressed reluctance to schedule refusals motions, noting they often add little value and that adverse inferences may be drawn at trial where proper questions are refused.

The matter was scheduled for a further case conference to assess the potential for mediation and estimate trial length.

The defendants appealed a trial judgment ordering them to pay outstanding school fees, arguing the action was statute-barred.

The parents had tendered post-dated cheques to the school in May 1992, which were negotiated over the following months.

The court held that a post-dated cheque acknowledges a debt not only upon delivery but also when the funds are actually withdrawn from the debtor's account.

Because the cheques were negotiated within six years of the action being commenced, the limitation period was extended by part payment and the action was brought in time.

The appeal was dismissed.