Izaak de Rijcke

On a CCAA motion, the moving parties sought approval of a reverse vesting transaction and ancillary relief following a court-approved SISP with a stalking horse credit bid.

The court applied the s. 36(3) criteria and found the process was transparent, adequately marketed, monitor-supervised, and fair and reasonable in the circumstances.

The court accepted the monitor’s evidence that a going-concern outcome would produce materially better stakeholder outcomes than liquidation and would preserve enterprise value while reducing restructuring costs.

Applying the Harte Gold framework, the court held the reverse vesting structure was necessary, economically superior to viable alternatives, non-prejudicial to stakeholders relative to alternatives, and reflective of fair value for preserved intangibles.

The motion was granted and both the Reverse Vesting Order and Ancillary Order were approved.

The appellants sought to advance a new theory regarding a 15-degree bend in the property boundary line between their lot and the respondent's lot on Jack Lake.

This theory was based on new expert evidence obtained after the Court of Appeal's 2020 decision, which had remitted the matter back to the Superior Court to determine the location of the water's edge in 1902 and related issues.

The motion judge dismissed the appellants' second application as a collateral attack on the 2020 order.

The Court of Appeal upheld this dismissal, finding the second application constituted an abuse of process because the bend theory could and should have been raised in the original application.

The court also rejected the appellants' alternative motion to vary the 2020 order.

The applicants sought judgment to enforce the terms of a settlement reached at a judicial pre-trial regarding a disputed strip of land used as a farm access road.

The dispute centered on the precise location of a fence to be constructed as part of the settlement.

The court found that a binding settlement had been reached, memorialized in a written document, and that the parties' subsequent conduct confirmed their agreement.

The court rejected the respondents' arguments of misunderstanding or mistake, holding that there was no evidence of a lack of authority or misapprehension by counsel.

The court granted the motion, enforcing the settlement.

This motion concerned a property dispute where the applicant sought to convert an application into an action.

The court granted the motion, finding that the case involved material facts in dispute, complex issues requiring expert evidence, credibility assessments, and a need for pleadings and discoveries.

The conversion was deemed in the interests of justice, providing the respondent with the opportunity to pursue summary judgment and ensuring a more suitable procedural framework for the complex issues involved.

The court also indicated it would case manage the proceeding with strict deadlines.

This is an appeal from an order granting possessory title by reason of adverse possession.

The appellant argued the trial judge erred in applying the inconsistent use test, claiming the title holder's long-term intention for future development created no inconsistency with the adverse possessor's residential use.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that the relevant use of the title holder's land was commercial farming, which was inconsistent with the respondents' residential use.

The court also upheld the dismissal of the appellant's claim for damages related to a certificate of pending litigation and the award of punitive damages against the appellant for destroying the disputed property without warning.

The plaintiff brought a motion for summary judgment against the defendant for damages arising from the defendant's failure to close a real estate transaction.

The defendant raised numerous defenses, including intoxication, misrepresentation, non est factum, undue influence, duress, and unconscionability, largely blaming the dual real estate agent.

The court found that none of the defenses raised a genuine issue for trial, noting the defendant's lack of credibility and failure to provide supporting evidence.

The court also rejected the defendant's argument that the motion was an inappropriate request for partial summary judgment due to an outstanding third-party claim against the real estate agent.

The court awarded the plaintiff $168,962.63 in damages and declined to stay the enforcement of the judgment.

The plaintiffs sought a prescriptive easement over a lane on the defendant's adjacent farm property to access their landlocked parcel, as well as damages for trespass after the defendant removed a boundary fence and trees.

The court found that the plaintiffs and their predecessors had used the lane continuously from 1965 to 2002 with the acquiescence of the previous owners, establishing an easement under the doctrine of lost modern grant.

Relying on expert surveyor evidence, the court determined the boundary line was the centre of the historic snake rail fence.

The court held the defendant trespassed by removing the fence and trees, awarding the plaintiffs $35,000 in damages.

The plaintiffs, purchasers of a property, sued for the return of their $50,000 deposit after the real estate transaction failed to close.

The defendant vendor counterclaimed for damages and forfeiture of the deposit.

The core issues were whether the vendor provided good and marketable title, specifically regarding the discharge of a private mortgage and the vendor's non-resident status under the Income Tax Act.

The court found that the vendor breached the Agreement of Purchase and Sale by failing to provide an executed discharge of the private mortgage on or before closing, as a lawyer's personal undertaking is not acceptable for private mortgages under Law Society of Ontario guidelines.

This breach entitled the purchasers to treat the contract as ended.

The court did not rule on the non-resident declaration issue.

The plaintiffs were awarded the return of their deposit plus pre-judgment interest, and the counterclaim was dismissed.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellant was awarded costs of the appeal in the agreed upon, all-inclusive amount of $15,000.

The appellant appealed a trial decision determining the terminus of a lot line between two waterfront properties on a controlled lake.

The trial judge found that the term 'High Water Mark' on the registered plan unambiguously referred to the Normal Controlled High Water Level.

The Court of Appeal allowed the appeal, finding that the term created a latent ambiguity and that the original subdivider intended to convey all the land it owned, which extended to the water's edge at the time of the 1902 Crown patent.

The matter was remitted to the trial court to determine the water's edge at the time of the Crown patent and the effects of any subsequent erosion or accretion.

The appellant appealed a decision of the Deputy Director of Titles regarding a boundary dispute between neighbouring lakefront properties.

The issue was whether the metes and bounds description in the registered deed and plan of subdivision, which contained a mathematical error, or an original wooden surveyor's stake should govern the boundary line.

The Divisional Court dismissed the appeal, holding that while a registered description generally governs, where it demonstrably fails to express the grantor's true intention, original surveyors' monuments take precedence.

The court affirmed the application of the hierarchy of boundary evidence and section 9 of the Surveys Act.

The appellant sought costs for two trials and an appeal regarding a property dispute involving adverse possession and prescriptive easements.

The Court of Appeal found that the appellant was largely successful and that the respondent's actions in maintaining an erroneous claim to the entirety of the disputed property were unreasonable.

The Court awarded the appellant $282,000 in costs for the two trials and set off the $25,000 appeal costs against a previous costs order in favour of the respondent.

The applicants applied under the Boundaries Act to confirm the true location of the boundaries of their recreational property (Lot 7).

The adjoining owners to the west and east objected, relying on conflicting surveys.

The tribunal had to resolve conflicting alignments for the front and rear limits of the tier of lots, and determine the best evidence for the side lines.

Applying the hierarchy of evidence, the tribunal accepted the front and rear limits based on original monuments perpetuated in earlier surveys, rejecting a surveyor's reliance on measurements.

For the east boundary, the tribunal accepted long-standing occupational evidence (a ditch) as relating back to the original survey, taking precedence over proportioned measurements.

The west boundary was established by proportioning between undisputed corners.

The boundaries were confirmed accordingly, and each party was ordered to bear their own costs.

The appellant appealed a trial judgment granting the respondent possessory title over a portion of his beachfront property by way of adverse possession or, alternatively, a prescriptive easement.

The Court of Appeal allowed the appeal in part, setting aside the finding of adverse possession because the respondent had not effectively excluded the appellant from the property.

The Court also varied the easement finding, limiting it to non-vehicular traffic on a specific path, as there was no continuous 20-year period of vehicular use.

The trial judge's costs orders, including an order against the appellant's counsel personally, were set aside.

The appellant association appealed a decision of the Deputy Director of Titles (DDT) fixing the southern waterfront boundaries of two lots on a registered plan of subdivision at the water's edge instead of the 'high water mark' shown on the plan.

The appellant argued the DDT exceeded her jurisdiction and that her decision was unreasonable.

The Divisional Court dismissed the appeal, finding that the DDT reasonably interpreted her jurisdiction under the Boundaries Act to determine the true intention of the original subdivider.

The Court held that the DDT's conclusion that the subdivider intended to convey all the land he owned to the water's edge, but mistakenly believed the Crown owned the land between the high water mark and the water's edge, was supported by the evidence and reasonable.

The appellant sought to appeal a judgment disposing of claims under the Land Titles Act to the Court of Appeal.

The Court of Appeal determined it lacked jurisdiction, as section 27 of the Land Titles Act directs such appeals to the Divisional Court.

The court transferred the appeal and the related motion for leave to appeal costs to the Divisional Court pursuant to section 110 of the Courts of Justice Act, with a request to expedite the hearing.

Following a trial concerning a possessory land claim, the successful party sought costs and the court initiated a Rule 57.07 inquiry regarding whether the opposing party’s lawyer should personally bear responsibility for wasted costs.

The court first rejected a recusal motion alleging reasonable apprehension of bias, applying the test from Wewaykum and concluding that prior findings and procedural steps did not create a reasonable apprehension of bias.

On the merits, the court applied the two‑step framework from Galganov v. Russell (Township) to determine whether the lawyer caused unnecessary costs and whether a personal costs order was warranted.

The court found the lawyer knowingly or negligently presented an expert witness whose lack of impartiality was evident, resulting in significant wasted trial time.

Exercising its discretion, the court ordered the lawyer to reimburse the client for 20% of the $490,000 costs award and to pay additional costs for the Rule 57.07 hearing.

In a new trial ordered following a successful appeal concerning a possessory claim and an appeal under the Land Titles Act, the objector sought to read portions of the claimant’s prior cross‑examination transcript from the original trial into evidence.

The claimant objected on the basis that prior procedural orders required lay witnesses to testify viva voce and did not authorize the use of her previous testimony.

The court held that the Rules of Civil Procedure governed the proceeding rather than the evidentiary flexibility permitted under the Land Titles Act or the Statutory Powers Procedure Act.

The proposed transcript excerpts could only be used for impeachment and should have been put to the witness during cross‑examination in accordance with the rule in Browne v. Dunn and the Ontario Evidence Act.

As the statutory and common‑law requirements for admitting such evidence were not satisfied, the motion to read in the transcript evidence was dismissed.

The possessory claimant brought a motion to stay a new trial or, in the alternative, for security for costs, following a successful appeal that ordered a re-trial due to apprehension of judicial bias.

The objector brought a cross-motion for security for costs.

The court noted that both parties had achieved parallel success in previous proceedings and faced similar risks of losing their properties to pay litigation costs.

Finding that a stay would deny access to justice and that neither party should be given an advantage under the rules, the court dismissed both the motion and the cross-motion.

Following the dismissal of an action seeking a declaration that a public road existed along the shoreline of Georgian Bay properties, several defendant groups sought costs.

The defendants argued for substantial indemnity costs based on alleged misconduct by the municipality, while the plaintiff contended that costs should be limited and apportioned globally among defendants.

The court rejected the claim for substantial indemnity costs, finding no reprehensible conduct by the plaintiff.

Applying Rule 57.01 principles, the court assessed partial indemnity costs individually for each successful defendant group, reducing some claims to account for duplication, inefficiencies, and unsupported expert disbursements.

Costs were awarded separately to the defendants in amounts the court found reasonable and proportionate.