James L. MacGillivray

The plaintiffs, Louis and Sandra Aileen Balogh, were successful in their action against R.C. Yantha Electric Ltd. and Rodney Yantha, establishing that their property was not subject to a prescriptive easement or right of way.

In this costs endorsement, the plaintiffs sought substantial indemnity costs due to the defendants' conduct, including trespassing and altering their land, and their failure to accept an earlier offer.

The court found the defendants' conduct to be "reprehensible, scandalous or outrageous" and awarded substantial indemnity costs.

While the plaintiffs' offer did not trigger Rule 49, the court considered the defendants' conduct and the principles of indemnity and reasonable expectation of costs.

The court adjusted the total fees and disbursements claimed by the plaintiffs, awarding $70,000 in fees plus HST, and $3,800.60 in disbursements plus HST, against both defendants.

The plaintiffs purchased a vacant recreational property in 2005.

In 2014, the defendants purchased an adjacent property and claimed a right of way over a track on the plaintiffs' land, tearing down the plaintiffs' fence to gain access.

The plaintiffs sued for trespass and an injunction, while the defendants counterclaimed for a declaration of a right of way or an access road under the Road Access Act.

The Superior Court of Justice found that the defendants failed to establish a prescriptive easement under the doctrine of lost modern grant, as there was insufficient evidence of 20 years of continuous, uninterrupted use prior to the land's conversion to the Land Titles system in 1999.

The court also held that the track did not qualify as an access road under the Road Access Act.

The court granted an injunction prohibiting the defendants from crossing the plaintiffs' property.

An insurer appealed a summary judgment decision that permitted insureds to retain insurance payments in excess of their actual loss.

The insurer paid $1,030,187.04 to the insureds following a fire loss, but an appraisal determined the total payable amount was $926,677.03, resulting in an overpayment of $103,510.01.

The motion judge held that the insureds could retain the excess funds based on an email communication from the insurer's representative.

The Court of Appeal reversed, holding that a contract of insurance is a contract of indemnity and cannot be used to turn misadventure into profit.

The court found the motion judge made a palpable and overriding error of fact in interpreting the email and committed extricable legal errors in analyzing both the insurance policy and the Insurance Act.

The plaintiff brought a motion for summary judgment seeking $102,898.22 for an alleged breach of a lease agreement by the defendant.

The defendant contended that an early termination clause from the original lease was carried forward into a subsequent lease amending/extension agreement.

The court found that the early termination clause was a specific, time-sensitive provision that had expired and was not implicitly incorporated into the new agreement.

Consequently, the plaintiff's motion for summary judgment was granted.

The appellant electrical contractor appealed trial judgments finding it breached sub-contracts for integrated security systems at two correctional facilities by refusing to perform disputed wiring and termination work.

The Court of Appeal upheld the trial judge's findings on the scope of work and mitigation of damages, dismissing the corporate appellant's appeals.

However, the Court allowed the individual appellant's appeal, setting aside his personal liability for breach of trust under s. 13(1) of the Construction Lien Act, finding insufficient evidence that he assented to or acquiesced in conduct amounting to a breach of trust.

Following a trial concerning a failed real estate transaction, the vendor sought damages for the difference between the agreed purchase price and the eventual resale price after the purchasers refused to close.

The purchasers successfully resisted the vendor’s $100,000 claim and obtained partial recovery on their counterclaim.

In this addendum and costs decision, the court determined the successful purchasers were entitled to costs under Rule 57.01 of the Rules of Civil Procedure.

Applying the fairness and reasonableness principles from appellate authority, the court fixed costs at $30,000 all-inclusive payable by the unsuccessful vendor.

The court also clarified that a $1,000 deposit held by the real estate brokerage was to be returned to the purchasers as part of the rescission of the contract.

A vendor sued purchasers for breach of an agreement of purchase and sale after they refused to close on a residential property.

The purchasers discovered before closing that the property had been constructed on top of a discontinued landfill site and alleged negligent misrepresentation in the vendor’s Seller Property Information Statement (SPIS).

The court held that once a vendor completes an SPIS, the doctrine of caveat emptor does not protect misleading answers.

The vendor’s responses regarding environmental contamination and landfill activity were misleading and constituted negligent misrepresentation.

The purchasers were entitled to rescind the agreement and recover certain expenses incurred in reliance on the misrepresentation.

In a standalone costs decision arising from two successful commercial actions by the plaintiff, the court considered whether the defendants' conduct justified full indemnity costs from the inception of the proceedings and what quantum of costs was fair and reasonable.

The court held that although the defendants' conduct, including fabrication and destruction or concealment of documents, was extremely troubling and lengthened the litigation, it did not meet the threshold of reprehensible, scandalous, or outrageous conduct warranting elevated costs from the outset.

Applying Rule 49 and the general principles governing reasonableness, fairness, and proportionality, the court awarded partial indemnity costs to the date of the plaintiff's written offers to settle and substantial indemnity costs thereafter.

The court declined to reduce the amounts claimed and awarded costs of $159,003.92 in one action and $88,125.65 in the other, while also correcting an error in the underlying judgment nunc pro tunc.

A systems integration contractor sued an electrical subcontractor for breach of contract on two correctional facility projects involving integrated security systems.

The dispute concerned the scope of work, including responsibility for supplying and installing wiring and terminating field devices.

The court found the subcontractor breached the contracts by refusing to perform required work and drew an adverse inference due to spoliation of electronic evidence and fabricated quotes.

The subcontractor’s counterclaim for unpaid work was dismissed.

The court also held the company’s principal personally liable for breach of the statutory trust under the Construction Lien Act but declined to declare the debt non‑dischargeable in bankruptcy.

The defendants moved under Rule 24 of the Rules of Civil Procedure to dismiss a long‑standing action for delay or, alternatively, to terminate an interim order freezing a bank account.

The dispute concerned whether certain real property and a bank account were held in trust for the estate of a deceased parent or beneficially owned by two siblings who held legal title.

The action had been commenced more than fourteen years earlier and virtually no steps had been taken to advance it, allegedly due to related estate litigation in the Philippines.

The court found no continuing justification for maintaining the freeze order on the bank account, particularly given the lack of evidence supporting the alleged trust claim and the hardship imposed on the defendants.

The freeze order was vacated and the plaintiffs were ordered to set the matter down for trial within 30 days, failing which the action could be dismissed and the certificate of pending litigation vacated.

The plaintiff brought a motion seeking certification of a proposed class proceeding against one defendant for settlement purposes.

The claim alleged a conspiracy to raise, maintain, fix, or stabilize gasoline prices in Eastern Ontario contrary to the Competition Act and the common law.

The court held that the pleadings disclosed viable causes of action, the proposed class definition was objectively ascertainable, and the existence of the alleged conspiracy constituted a common issue suitable for class determination.

The court further found that the representative plaintiff adequately represented the class and that the proposed settlement agreement contained a workable litigation plan including opt‑out procedures and notice provisions.

Certification for settlement purposes was granted as against the settling defendant.

At a status hearing under Rule 48.14 of the Rules of Civil Procedure, the plaintiff was required to show cause why his oppression remedy action under the Ontario Business Corporations Act should not be dismissed for delay.

The court applied the established two-part test requiring an acceptable explanation for delay and absence of non-compensable prejudice to the defendants.

The evidence demonstrated that the plaintiff had taken multiple steps to advance the litigation, including motions, mediation, documentary disclosure, and the addition of a new defendant.

The defendants provided no evidence of prejudice.

The court held the plaintiff met the onus to show cause and permitted the action to proceed with a detailed litigation timetable.

The appellant trustee in bankruptcy appealed a trial judgment finding no intention to form a debt between the bankrupt and the respondent.

The Court of Appeal dismissed the main appeal, holding that the trial judge's factual findings, which accepted the respondent's explanation for questionable book entries, could not be disturbed.

However, the Court granted leave to appeal costs and reduced the trial costs award from a solicitor and client scale to a party and party scale, noting the trustee was justified in being suspicious of the altered accounting records.