Jarvis K. Postnikoff

The appellants appealed a trial judgment that found a beneficial interest of 26% in a house for a deceased's estate, based on a purchase money resulting trust.

The appeal addressed whether the trial judge erred in applying the legal requirements for a resulting trust, particularly the "acted as a purchaser" requirement and the onus of proof regarding loans versus gifts.

It also considered the application of the corroboration requirement under s. 13 of the Evidence Act.

The Court of Appeal clarified that the presumption of resulting trust places the onus on the title holder to rebut it by proving the money was a loan or gift, and that the "acted as a purchaser" requirement applies only at the time of advancement.

The court found no reversible error in the trial judge's findings on the resulting trust or the application of s. 13, as the trial judge rejected the loan evidence on credibility grounds.

The appeal was dismissed.

The applicants sought a declaration of a prescriptive easement or an ancillary right to park on a private road (Hunters Road) owned by the respondent, which they used to access their cottages.

The court dismissed the application, finding that the applicants failed to establish the elements for a prescriptive easement, specifically that their use was "peaceful" and "uninterrupted" for the requisite 20-year period due to the respondent's consistent objections.

Furthermore, the court found that parking on Hunters Road was not "reasonably necessary" for the enjoyment of their properties, as their respective title documents provided for alternative parking solutions.

The defendants brought a motion to set aside a default judgment for possession of their property, which was granted to the plaintiff due to mortgage default.

The court dismissed the defendants' motion, finding they failed to provide a plausible excuse for the default, were properly served, and did not demonstrate an arguable defence on the merits.

The court also rejected the argument that the judgment was an improper 'partial default judgment' and concluded that the balance of prejudice favored the plaintiff, as the defendants continued to occupy the property without payments while the plaintiff incurred expenses.

The plaintiff, Solina Bradshaw, sought elevated costs from the defendant, Jack Hougassian, following a successful judgment in an estate matter.

Jack Hougassian sought costs, arguing divided success, and Sona Shea, self-represented, also sought costs.

The court awarded the plaintiff $125,000.00 in all-inclusive costs from Jack Hougassian, finding the plaintiff was the successful party and that Jack's conduct warranted an elevated award.

The court dismissed Jack's and Sona's claims for costs, noting Sona did not meet the criteria for self-represented litigant costs.

The plaintiff, acting as estate trustee for her deceased mother, brought an action against her brother claiming the mother's estate had a beneficial interest in a property registered solely in the brother's name.

The mother had contributed $10,000 to the down payment when the property was purchased in 1980, and lived there until her death in 2018.

The court found that the brother failed to rebut the presumption of a purchase money resulting trust regarding the $10,000 contribution.

The court awarded the estate a 26% beneficial interest in the net sale proceeds of the property, amounting to $115,900.44, plus $10,000 in damages for the brother's improper disposal of the mother's personal property.

Claims of fraud and breach of fiduciary duty were dismissed, and the action was found not to be statute-barred.

The plaintiffs sought summary judgment against the defendants for breach of an agreement of purchase and sale of residential property.

The defendants admitted liability, with the dispute centering on the assessment of damages and the plaintiffs' duty to mitigate.

The court granted summary judgment, finding that the plaintiffs took reasonable steps to mitigate their loss by promptly re-listing and selling the property, and that the resale price was a valid measure of market value.

The court awarded damages for the difference between the original contract price and the resale price, plus approved ancillary expenses, crediting the deposit against the total judgment.

The defendant contractor in a construction lien action brought a motion for security for costs against the corporate plaintiff.

The court first granted leave to bring the motion under s. 67(2) of the Construction Lien Act, finding it necessary to 'even the playing field' as the plaintiff lacked sufficient assets in Ontario.

Applying the framework for security for costs, the court found the plaintiff failed to provide full financial disclosure to establish impecuniosity and failed to demonstrate a good chance of success on the merits.

The motion was granted, and the plaintiff was ordered to post security for costs in installments totaling $77,500.

The plaintiff, SRK Woodworking Inc., brought a motion to amend its pleadings to add new parties (officers and directors of the defendant, Devlan Construction Ltd.) and to join a breach of trust claim with its existing construction lien action.

The court examined the transitional provisions of the Construction Act and the impact of the repeal of the former prohibition on joining trust claims with lien claims, as well as the re-location of the permissive joinder of breach of contract claims to a regulation.

The court found that the prompt payment and adjudication schemes of the new Act did not apply to this case, and therefore, there was no reason to prohibit the joinder of trust and lien claims.

The motion to add the new defendants and amend the Statement of Claim was granted.

The applicant sought a prescriptive easement over a sand path on the respondents' land to access the beach from his cottage.

The respondents opposed, arguing the easement was not reasonably necessary and that their predecessors in title were unaware of the path's use.

The court found that the path was reasonably necessary for the better enjoyment of the cottage property and that the applicant had proven 20 years of continuous, open, and uninterrupted use.

The motion for a prescriptive easement was granted.

The plaintiffs, a renovation company and its owner, sued the defendant homeowner for an unpaid balance on a renovation contract.

The initial fixed-price contract was later superseded by an oral agreement during a November 2017 meeting due to project delays and disputes.

The court found the plaintiffs' initial estimate and project management lacked diligence, and their claims for extra work were largely unsubstantiated.

However, the court determined that a new oral agreement was reached for a total contract price of $90,000.00, inclusive of labour, material, and HST.

The defendant had paid $65,129.60.

Judgment was awarded to the plaintiff Kyle O’Brien for the remaining balance.

The plaintiff sought an interlocutory injunction to prevent the defendants from using the name "Kishki Halal Supermarket" for a new grocery store, alleging passing off.

The court applied the three-stage test for interlocutory injunctions from *RJR-MacDonald* and the components of a passing off action.

The court found that the plaintiff failed to establish a serious issue to be tried, specifically regarding public deception and actual/potential damage caused by deceptive misuse of goodwill.

The court also found no irreparable harm and that the balance of convenience favored the defendants.

The motion was dismissed, and costs were awarded to the defendants.

This case involved a protracted and acrimonious neighbour dispute between the Johnsons and Jeffrey Cline, primarily concerning counterclaims for nuisance, harassment, intimidation, invasion of privacy, intentional infliction of emotional distress, and malicious prosecution.

The court found Cline's actions, including constant monitoring, unfounded police complaints, and verbal abuse, constituted actionable nuisance.

Cline's counterclaim for invasion of privacy, nuisance, and negligence was dismissed, with the court finding his complaints unreasonable and his evidence not credible due to his obsession with the Johnsons.

The Johnsons were awarded general damages for nuisance and mental distress, and an injunction was granted restraining Cline from interfering with their property and communicating with them.

The claim for malicious prosecution was dismissed due to a failure to establish absence of reasonable and probable cause.

The plaintiffs sought prejudgment interest (PJI) from September 30, 2009, the date the cause of action arose, rather than September 1, 2011, the date the statement of claim was issued, despite the latter yielding a higher prescribed rate.

The court, relying on its prior judgment, found the defendant Ashton Pools liable for inadequate concrete base installation causing patio cracking.

Applying sections 128-130 of the Courts of Justice Act and principles that PJI compensates for loss of money use, the court awarded PJI from the cause of action date, September 30, 2009, until May 2, 2016, in the amount of $1,195.45, plus post-judgment interest.

Following a 23-day trial that originated as a contested passing of accounts, the unsuccessful plaintiff was ordered to pay costs.

The defendants sought substantial or full indemnity costs based on unproven allegations of breach of trust and unaccepted offers to settle.

The court declined to award elevated costs, finding the allegations did not amount to fraud and the plaintiff was entitled to a trial.

The court fixed partial indemnity costs, significantly reducing claims for travel expenses, expert fees, and excessive trial preparation time, ultimately ordering the plaintiff to pay a total of $721,450 in costs to the various defendants.

Homeowners brought a claim against a swimming pool installer for breach of contract regarding the installation of a pool and concrete patio that developed significant cracks due to inadequate base material and insufficient control joints.

The court found the installer liable for breach of express and implied warranties, rejecting the installer's reliance on exclusion clauses because the onerous terms were not brought to the homeowners' attention.

Damages were awarded for patio replacement, driveway repair, and other deficiencies.

The installer's counterclaim for extras and its third-party claim against the concrete supplier were dismissed.

The plaintiff, a residual beneficiary of her father's estate, brought an action against the estate trustee, the estate's lawyers and accountants, and the purchasers of the deceased's shares in a family business.

The plaintiff alleged that the estate trustee breached her fiduciary duty by selling the shares without authorization and at an undervalue, and raised numerous objections on the passing of accounts.

The court found that the will authorized the sale of the shares, the estate trustee acted reasonably, and the shares were sold for fair market value.

The claims against all defendants were dismissed.

On the passing of accounts, the court fixed the estate trustee's compensation but reduced it to account for legal and accounting fees that were properly characterized as executor's work.

A corporate defendant sought leave to appeal to the Divisional Court from an interlocutory order granting an injunction freezing proceeds from the sale of certain properties.

The moving party argued the motion judge erred regarding res judicata and the existence of a serious issue to be tried, and that the order improperly restrained funds without determining a proprietary interest.

The court applied Rule 62.02(4) of the Rules of Civil Procedure and held that the moving party failed to establish either a conflicting decision or a good reason to doubt the correctness of the order combined with a matter of sufficient public importance.

The dispute was fact-driven and concerned only the interests of the litigants.

Leave to appeal was therefore refused.

A commercial tenant sought relief from forfeiture after the landlord terminated the lease and changed the locks due to rent arrears exceeding $44,000.

The tenant argued it withheld base rent because it expected a credit for overpaid additional rent and had not received an accounting.

The court held that the lease permitted immediate re-entry for non‑payment and that the tenant was a serial defaulter with significant arrears.

Relief from forfeiture is discretionary and only granted where forfeiture would be inequitable or unjust.

The court found nothing inequitable in allowing the landlord to enforce its contractual rights and dismissed the application.

A homeowner brought an action against a contractor arising from a kitchen renovation project involving multiple unclear written and unwritten agreements.

The plaintiff alleged numerous deficiencies including an uneven floor, improperly installed cabinets, lack of structural roof support after removal of ceiling joists, and ventilation deficiencies.

The court found that the contractor breached aspects of the contract and performed some work negligently, including failing to provide structural support compliant with the Building Code.

However, the plaintiff failed to prove the cost of rectifying most alleged deficiencies, which is required to establish damages absent rescission.

Judgment was granted only for the return of a $5,600 window deposit that was paid but for which no windows were supplied or installed.