Howard L. Shankman

The plaintiffs, who operate a commercial lighting manufacturing business, brought an action against the defendants, who operate an adjacent transport and warehousing business.

The plaintiffs claimed that dust from the defendants' unpaved parking lot constituted a nuisance that interfered with their manufacturing process, causing a loss of productivity.

They also claimed that the defendants' transport trucks repeatedly trespassed onto their driveway, damaging curb stones and displacing concrete blocks.

The court found that the dust constituted an actionable nuisance and awarded damages for loss of productivity and refinishing costs.

The court also found that the trucks trespassed on the plaintiffs' property, holding the corporate defendants and their director personally liable.

Damages were awarded for the trespass, and a permanent injunction was granted to restrain further trespassing.

A contractor sued a homeowner for the unpaid balance on a residential renovation contract, while the homeowner counterclaimed for disputed extras, incomplete work, and deficient workmanship.

The court, on a Rule 54 reference, held that the parties had agreed to progress payments tied to the value of work completed and that the homeowner fundamentally breached the contract by refusing any further payment and refusing to negotiate a reasonable compromise despite work having substantial value beyond amounts already paid.

The court conducted a detailed item-by-item review of disputed extras and credits, fixed the proper contract-plus-extras amount, and deducted credits for incomplete work and a further allowance for deficiencies.

Judgment was effectively awarded to the contractor for the net balance of $12,267.45 plus pre-judgment interest, with costs reserved and a preliminary view of no costs because of divided success.

Following the dismissal of a motion for summary judgment concerning the validity of a transfer of property from joint tenants to tenants in common, the court addressed costs.

The motion had been dismissed after the court determined that significant factual disputes required viva voce evidence and the parties did not consent to the judge continuing to hear the matter after a settlement conference.

The court found that the plaintiffs’ request for recusal contributed to the motion being dismissed prior to final adjudication, but also noted that both parties had initially urged the court to determine the motion without oral evidence.

In the unusual circumstances, the court ordered that each party bear its own costs, while reserving certain preparatory costs related to trial for determination by the trial judge.

The plaintiffs brought a motion for summary judgment.

After hearing submissions, the court determined that significant factual disputes required resolution through viva voce evidence tested by cross‑examination.

The judge indicated that oral evidence would be required under Rule 20.04(2.2) of the Rules of Civil Procedure to properly determine whether a genuine issue requiring a trial existed.

The plaintiffs raised concerns about the judge hearing viva voce evidence after previously conducting a settlement conference in the matter.

As the parties did not mutually agree that the same judge should hear the oral evidence, the motion for summary judgment was dismissed.

The plaintiffs sought costs following the withdrawal of a defendant’s counterclaim and cross‑claim asserting entitlement to property through a constructive trust.

The counterclaim had expanded the scope and financial stakes of the litigation concerning ownership of residential property and required additional legal work by the plaintiffs’ counsel.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court held that the plaintiffs were entirely successful in having the counterclaim withdrawn and that the claim lacked merit.

The court awarded costs on a substantial indemnity basis, finding that approximately 25 hours of counsel time reasonably related to responding to the counterclaim.

Costs of $7,585 plus HST and disbursements were fixed.

The plaintiffs brought a motion to set aside a transfer of real property that severed a joint tenancy, which would otherwise determine whether the deceased’s interest passed through survivorship or through his estate.

The parties urged the court to treat the matter as suitable for summary judgment based solely on the written record.

The court held that the motion record revealed significant factual disputes, including conflicting evidence from witnesses and potential credibility issues.

Relying on appellate guidance regarding the limits of summary judgment where a full appreciation of evidence is required, the court concluded that viva voce evidence was necessary.

The court ordered that specified witnesses provide oral evidence with limited cross-examination to facilitate a fair determination.

The appellants were entirely successful on their appeal and sought costs.

The court awarded the appellants costs fixed at $1,000 for the motion for leave to appeal and $4,500 for the appeal, noting that the outcome was more favourable than an offer to settle made to them by the respondents.

The court found it was unreasonable for the respondents to oppose the appeal given the lack of reasonable prospect of success.

The court issued an amendment to its original judgment released on July 28, 2011, to correct an error regarding the place where the appeal was heard.

The original judgment incorrectly stated the appeal was heard in London, and was amended to reflect that it was heard in Hamilton.

The appellants appealed an interlocutory order granting the respondents unfettered access to a residential property to retrieve personal belongings.

The motions judge had noted the appellants in default and refused to allow their counsel to make submissions on a motion to set aside the default or on the merits of the respondents' motion.

The Divisional Court allowed the appeal and set aside the order, finding that the motions judge erred in law and denied procedural fairness by refusing to hear counsel, misinterpreting Rule 19.02, granting relief that far exceeded the notice of motion, and failing to provide reasons.

The appellant appealed a trial judgment that dismissed both the claim and counterclaim because the trial judge could not determine where the truth lay.

The trial judge noted the absence of critical documentation and witnesses.

The Court of Appeal dismissed the appeal, finding that any misapprehension of evidence by the trial judge was not material to the outcome.

Following a successful appeal by the defendants regarding a representation order, the parties sought a determination on the costs of the original motions before the motion judge, which had been reserved.

The motion judge had originally awarded $9,000 globally to the plaintiff for success on three motions.

The Divisional Court suggested an arbitrary reduction of the costs award to $6,000 to reflect the defendants' success on appeal regarding one of the motions, and referred the matter back to the motion judge if the parties could not agree.

The plaintiff, an elderly man, was severely beaten by individuals on a union picket line.

He sued the defendants in their personal capacity and, after the two-year limitation period expired, sought a Representation Order under Rule 12.07 to bind all union members.

The motions judge granted the order based on the common law 'special circumstances' doctrine.

However, subsequent Court of Appeal decisions eliminated this doctrine.

On appeal, the Divisional Court held that a Representation Order effectively adds new parties to the action.

Consequently, the expiration of the limitation period was fatal to the application, and the appeal was allowed.

The defendants sought leave to appeal a motions judge's decision granting a Representation Order to add union members as defendants after the expiry of the limitation period, and refusing to strike the plaintiff's claim.

The Divisional Court granted leave to appeal the Representation Order, finding that recent Court of Appeal decisions abolishing the 'special circumstances' doctrine raised serious debate about the order's correctness.

However, the court denied leave to appeal the refusal to strike the claim, finding no palpable or overriding error in the motions judge's conclusion that the novel issues of vicarious liability for picketers' intentional torts should proceed to trial.

The appellant landlord appealed a trial judgment ordering it to pay damages to the respondent tenant based on promissory estoppel.

The trial judge found the tenant undertook renovations based on the landlord's representation that the premises could be used for film and photography, but the landlord later interfered with this business.

The Court of Appeal upheld the liability finding but reduced the damages award from $55,120 to $34,120, finding the trial judge failed to adequately consider evidence of a slow market when calculating lost revenue.

The applicant sought a death benefit following the death of his son in a motor vehicle accident.

The insurer denied the claim on the basis that the applicant failed to apply for benefits within the two-year limitation period and that the deceased was not a dependant.

The arbitrator held that the applicant was precluded from proceeding to arbitration because he failed to submit an application within two years of the accident, and that section 129 of the Insurance Act did not provide relief from forfeiture for this failure.

Furthermore, the arbitrator found that the deceased, a university student whose parents were divorced and shared his expenses equally, was not principally dependent for financial support on the applicant.