John G. Morrissey

The court interprets Article 7 of Floyd Kersey’s will, determining the proper distribution of his Canadian property where a named beneficiary predeceased him.

The court finds that the testator intended a per stirpes distribution, so that the share of a predeceased beneficiary passes to their issue, rather than lapsing or being distributed per capita among surviving named beneficiaries.

The application was unopposed and the applicant was awarded full indemnity costs from the estate, with a portion of costs personally payable by a respondent who evaded service.

This is a costs endorsement following a successful application for interim guardianship of property for an incapable adult.

The applicant, Brenda Myers, sought full indemnity costs, while the responding party, Tereasa Muscedere (the incapable adult's mother), opposed the costs award, claiming impecuniosity and excessive costs.

The court found Tereasa's opposition to the guardianship application unreasonable and ordered her to pay partial indemnity costs to Brenda Myers and s. 3 counsel for the incapable adult.

The balance of Brenda Myers' and s. 3 counsel's costs, and the Public Guardian and Trustee's full indemnity costs, were ordered to be paid from the incapable adult's property, with a portion of the PGT's costs adjourned to the passing of accounts.

Following a trial on damages for the repudiation of a commercial lease, the plaintiff sought costs.

The plaintiff claimed substantial indemnity costs based on an offer to settle and allegations of perjury by the defendants.

The court rejected the claim for substantial indemnity costs, finding no special circumstances or perjury.

The court awarded partial indemnity costs for the trial and re-ordered the payment of costs from a prior summary judgment motion, resulting in a total costs award of $55,461.70 to the plaintiff.

Following a motion regarding the discharge of a Certificate of Pending Litigation, the parties were unable to settle the issue of costs.

The successful plaintiffs sought partial indemnity costs of $7,506.35.

The court found the plaintiffs' claimed costs to be fair and reasonable, noting that the partial indemnity rate was reasonable and the total time spent was equivalent to that of the defendant's counsel.

The defendant was ordered to pay the plaintiffs' costs in the requested amount.

The defendant moved to discharge a Certificate of Pending Litigation (CPL) registered by the plaintiffs against his property.

The plaintiffs claimed unjust enrichment and a constructive trust interest in the property due to an alleged $50,000 overpayment for artwork, which they suspected the defendant used for the property purchase.

The defendant argued material non-disclosure by the plaintiffs and that there was no triable issue regarding an interest in land.

The court found no material non-disclosure and determined there was a triable issue for a constructive trust based on the alleged overpayment and the defendant's communications about using funds for the property.

The defendant's motion to discharge the CPL was dismissed.

The plaintiff, Markham Village Shoppes Limited, sought an assessment of damages following the defendant Gino's Pizza's repudiation of a 10-year commercial lease.

The matter was referred back by the Court of Appeal after new evidence regarding re-leasing the premises was admitted.

The court assessed damages based on past and future losses, considering the difference between the original lease and a replacement lease, mitigation efforts, and contingent future losses.

The court awarded damages for past losses, a discounted amount for future contingent losses, and real estate commission, while denying claims for an ecologizer and premises restoration costs.

The appellants appealed a summary judgment decision granted by the Superior Court of Justice.

The Court of Appeal allowed the appeal and set aside the summary judgment, directing that the matter be returned to the Superior Court for a trial on the quantification of damages.

The court issued an addendum addressing the disposition of costs from the original summary judgment motion, reserving such costs to the judge hearing the damages trial.

The appellant, a pizza restaurant operator, entered into a 10-year commercial lease but abandoned it within four months, claiming the premises were unsuitable.

The respondent landlord took possession, sued for damages, and obtained summary judgment for unpaid rent and prospective damages totaling $85,697.96, calculated on the basis of 22 months to re-let.

The appellant appealed, arguing the motion judge erred in awarding prospective damages without adequate evidence.

Before the appeal hearing, the premises were re-let approximately 10 months after the appellant's repudiation.

The Court of Appeal admitted fresh evidence of the re-letting and allowed the appeal, setting aside the damages award and remitting the matter for trial to properly quantify damages in light of the actual re-letting period.