John J. Cavarzan

The applicant mortgagee took possession of a residential property under a power of sale.

Prior to possession, an air conditioner subject to a registered Notice of Security Interest by the respondent was removed by an unknown party.

The respondent refused to discharge its notice without payment from the sale proceeds, arguing a priority dispute under the Personal Property Security Act.

The court held that the PPSA establishes rights for fixtures that exist on properties, and since the fixture was removed, no priority dispute existed.

The respondent was ordered to bear the loss and discharge its interest.

Following a jury trial in a personal injury action, the jury awarded the plaintiff damages for loss of competitive advantage but no non‑pecuniary damages or past income loss.

The court subsequently determined that the plaintiff failed to meet the statutory threshold and dismissed the action.

The defendant sought substantial indemnity costs relying on a pre‑trial offer to settle and alleged misconduct in pursuing the claim.

The court held that elevated costs require a clear finding of reprehensible or egregious conduct, which had not been established.

Costs were therefore fixed on a partial indemnity basis.

The Crown appealed an acquittal on a charge of failing to comply with a recognizance.

The trial judge had excluded the original information and recognizance because the Crown had not provided notice under s. 28 of the Canada Evidence Act.

The appeal court held that judicial documents such as recognizances may be admitted under the common law without notice and that s. 36 of the Act preserves that common law authority.

The court further held that the Crown was not barred from advancing this argument on appeal even though it had not been raised at trial.

The acquittal was quashed and a new trial was ordered.

The plaintiff was involved in a rear-end motor vehicle accident and claimed damages for chronic pain and psychological impairments.

Following a nine-day jury trial, the defendant brought a threshold motion arguing the plaintiff's injuries did not meet the statutory requirement of a permanent serious impairment under the Insurance Act.

The court reviewed extensive medical evidence and found the plaintiff lacked credibility, having concealed her pre-accident medical history and exaggerated her symptoms.

The court concluded the plaintiff failed to establish on a balance of probabilities that her injuries were permanent, noting she had voluntarily stopped treatment and had significant pre-existing conditions.

The defendant's motion was granted and the plaintiff's action was dismissed.

The appellants appealed their convictions and sentences for sexual assaults against three young girls.

The primary ground of appeal was that the trial judge erred by drawing an adverse inference against the credibility of one appellant's testimony because the defence failed to cross-examine a complainant on alleged written consent documents, invoking the rule in Browne v. Dunn.

The Court of Appeal found no error, holding that the adverse inference was a proper part of the trial judge's fact-finding and weighing of evidence, not a penalty for a tactical error.

The court also rejected arguments that the trial judge misapprehended evidence or failed to give separate consideration to the co-appellant's case.

The appeals from conviction and sentence were dismissed.

Following a successful trial concerning the interpretation of a registered easement agreement, the successful applicant sought costs on a substantial indemnity basis exceeding $98,000.

The respondents argued no costs should be awarded, relying on an arbitration clause in the agreement and a prior consent order, and alternatively sought reduced partial indemnity costs.

The court held the arbitration clause had effectively been waived by the parties’ consent to litigate the dispute and affirmed the principle that a successful party is generally entitled to costs.

Applying Rule 49.10(1) of the Rules of Civil Procedure and considering Rule 57.01 factors, the court awarded partial indemnity costs to the date of the offer to settle and substantial indemnity costs thereafter.

A global costs award of $85,000 inclusive of disbursements and taxes was ordered.

Following a successful civil trial, the plaintiffs sought costs after beating their Rule 49 offer to settle.

The court considered Rule 49.10 of the Rules of Civil Procedure and the discretionary factors under Rule 57.01 and s. 131 of the Courts of Justice Act.

The plaintiffs were entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

The court emphasized that costs awards must be fair and reasonable to the unsuccessful party and are not a precise calculation of actual legal fees.

Costs were fixed globally at $75,000 inclusive of disbursements and taxes.

The applicant sought declaratory and injunctive relief concerning the scope of a registered easement over her property used as part of a shared laneway servicing several subdivided residential lots.

The respondents claimed the easement allowed them to excavate the applicant’s land, construct a driveway to their garage, and park vehicles there.

The court interpreted the express easement agreement governing the subdivision and held that the right of way was limited to vehicular passage along the common lane and the installation and maintenance of service lines.

Ancillary rights could be implied only where necessary for the use of the easement, not merely convenient.

The respondents’ driveway construction, grading alterations, and parking exceeded the scope of the easement and interfered with the servient tenement.

Declaratory relief, restoration orders, and a permanent injunction were granted.

The Children's Aid Society applied for a finding that a 9-year-old child was in need of protection and sought an order for Crown wardship without access for the purpose of adoption.

The mother opposed the application, seeking return of the child, access if wardship was ordered, or a kinship placement with a relative.

The court found the child in need of protection due to the mother's history of substance abuse, violent behavior, and failure to provide adequate care, including exposing the child to squalid living conditions and domestic violence.

The court rejected the proposed kinship placement, finding the relative not credible.

The court ordered Crown wardship without access, concluding that access would not be beneficial and would impair the child's opportunities for adoption.

The plaintiffs brought an action against a municipality for damages arising from a trip and fall on a sidewalk.

The court considered whether the sidewalk was in a state of disrepair under s. 44 of the Municipal Act, 2001 and whether the municipality could rely on statutory defences.

The court found that a significant sidewalk crack and height differential constituted a state of disrepair and that the municipality failed to establish that it had taken reasonable steps to prevent the default.

The plaintiff pedestrian was found contributorily negligent for failing to pay adequate attention despite familiarity with the defect.

Damages were awarded for personal injury, wage loss, and related losses, subject to a 25% reduction for contributory negligence.

Following an application concerning the seizure of cigarettes under the Tobacco Tax Act, the applicant succeeded on a Charter challenge under s. 8 and obtained a remedy under s. 24(1) of the Charter requiring the return of seized cigarettes or payment of their value.

However, the respondents succeeded on the statutory interpretation issues under the Tobacco Tax Act.

The court considered costs pursuant to s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

Exercising its discretion to allocate costs by issue, the court declined to award costs for the statutory issues and limited recovery to the Charter portion of the proceeding.

An all‑inclusive costs award of $50,000 was ordered.

Following a motion in a civil action, the court addressed costs after written submissions were invited.

Only the responding party, a proposed defendant, filed submissions seeking partial indemnity costs.

Applying the general principle that costs follow the event and the factors under Rule 57.01 of the Rules of Civil Procedure, the court found the time spent by counsel was not manifestly unreasonable and that the matter had not been overly lawyered.

The court fixed costs on a partial indemnity basis in favour of the successful responding party.

The applicant, an unsuccessful municipal election candidate, sought relief from the statutory penalties imposed under s. 80(2) of the Municipal Elections Act, 1996 for failing to file a required campaign financial statement by the prescribed deadline.

The applicant relied on s. 92(6) of the Act and alternatively s. 98 of the Courts of Justice Act to request relief from forfeiture and ineligibility consequences.

The court held that s. 92(6) applies only in the context of prosecutions for specific offences under s. 92(5) and that the “presiding judge” referenced in that provision refers to a judge of the Ontario Court of Justice, not the Superior Court.

The court further found that equitable relief under s. 98 of the Courts of Justice Act was not warranted because the applicant’s failure to file reflected indifference rather than inadvertence or good faith.

The application was dismissed.

The plaintiffs brought a motion to amend their statement of claim to change the location of an alleged slip and fall and to add a new corporate defendant as the owner or landlord of the premises.

The court held that the plaintiffs failed to provide evidence of reasonable diligence to discover the identity of the proper defendant within the limitation period under the Limitations Act, 2002.

The court also rejected reliance on the doctrine of special circumstances, noting binding appellate authority that the doctrine cannot extend a limitation period.

The proposed amendment could not be justified as a correction of a misnomer under s. 21(2) because the amendment would alter the underlying material facts and the proposed defendant could not reasonably have known it was the intended defendant.

The motion to amend and add the party was dismissed and the derivative Family Law Act claims were also barred.

Following the dismissal of a summary judgment motion, the successful party sought partial indemnity costs.

The court considered the amended Rule 20 of the Rules of Civil Procedure and the developing jurisprudence governing costs consequences of unsuccessful summary judgment motions.

The court found that both bringing and resisting the motion had been reasonable and that the matter was a close contest.

Applying the approach in prior authority, the court ordered that costs be payable in the cause rather than immediately.

The amount of costs was fixed at $6,895.94.

A tobacco manufacturer sought declarations that a shipment of unmarked cigarettes seized by authorities under the Tobacco Tax Act was unlawfully seized and that it had a right to possess the tobacco.

The court found that the warrantless search and seizure of a delivery vehicle violated s. 8 of the Canadian Charter of Rights and Freedoms because the detention and search occurred without reasonable and probable grounds and because the authorized official improperly directed police remotely.

Although the court held that the applicant’s operations demonstrated substantial non‑compliance with the Tobacco Tax Act and its permit conditions, the Charter breach justified a remedy.

The court ordered the return of the seized cigarettes belonging to the applicant or compensation for their value if they had deteriorated.

The plaintiff insurance brokerage sued a former producer for breach of contract, breach of fiduciary duty, and tortious interference, claiming damages for commissions earned by the defendant after she joined a competing firm.

The defendant counterclaimed for reimbursement of unpaid premiums that the plaintiff had deducted from her earnings.

The court found that the plaintiff's unilateral imposition of a charge-back policy for unpaid premiums was a breach of contract, entitling the defendant to reimbursement.

However, the court also found that the defendant breached a valid non-solicitation clause by accepting business from the plaintiff's former clients, requiring her to disgorge the commissions earned.

The court dismissed the plaintiff's claim for breach of fiduciary duty, finding the defendant was not a key employee.

An automobile insurer brought a motion for summary judgment seeking dismissal of a negligence action against the vehicle owner, arguing the vehicle was in the possession of another person without the owner’s consent under s. 192(2) of the Highway Traffic Act.

The Minister of Finance, defending in the name of the driver under the Motor Vehicle Accident Claims Act, argued that the owner’s evidence regarding consent was inconsistent and raised factual issues.

The court held that the evidence created a genuine issue requiring a trial, particularly regarding whether consent or implied consent existed.

The court also found that the procedural circumstances disadvantaged the Minister in defending the action.

The motion for summary judgment was dismissed.

Following the dismissal of the respondent's application for leave to appeal, the successful applicant sought costs of $4,999.34.

The court considered the factors under the Rules of Civil Procedure, noting the matter was not complex and assessing what the unsuccessful party could reasonably expect to pay.

Costs were fixed at $3,500 inclusive of fees, disbursements, and GST, payable by the respondent.

The moving party mother sought an order extending the time to file a notice of appeal from a final order granting Crown wardship of her two children to the children's aid society.

The mother had been deported to the United States but had secretly resided in Canada during the proceedings, deliberately avoiding participation.

The court applied the test for extending time to appeal and found no bona fide intention to appeal, no merit to the proposed appeal, and significant prejudice to the children's need for permanency.

The motion to extend time was dismissed.