John Sebastian Winny

The appellant, Susan Opal McKay, appealed the dismissal of her claim for adverse possession over an eight-foot wide strip of land adjacent to her property, which is owned by the respondent, Joel Paul Vautour.

The dispute arose after the respondent removed an old paddock fence and replaced it with a fence on the surveyed boundary line.

The appellant argued that the paddock fence established the true boundary and that her predecessors in title had acquired possessory title prior to the land being converted to the land titles system in 2003.

The Court of Appeal upheld the trial judge's decision, finding that the appellant failed to meet the burden of proof for adverse possession, specifically lacking cogent evidence of open, notorious, constant, continuous, peaceful, and exclusive use with the intention to exclude the true owner for any ten-year period before June 16, 2003.

The court also found that the existence of another wooden fence on the actual boundary line and the ambiguous nature of the paddock fence's purpose undermined the appellant's claim.

The appeal was dismissed with costs awarded to the respondent.

The appellants appealed from an interlocutory order of the Superior Court of Justice granting the respondent's motion to amend her statement of claim in a Simplified Rules action.

The Court of Appeal found it lacked jurisdiction to hear the appeal, as interlocutory orders fall within the jurisdiction of the Divisional Court with leave.

The appeal was quashed for want of jurisdiction.

The plaintiff moved for an order requiring the defendants to attend cross-examinations on their affidavits of documents prior to examinations for discovery, alleging the affidavits were deficient.

The court dismissed the motion, finding no persuasive evidence that additional documents existed or had been withheld.

The court held that the proper course was to proceed with the scheduled examinations for discovery and ask questions about documents there, rather than engaging in premature cross-examinations based on speculation.

The plaintiff, Heart Zap Services Inc., sought summary judgment against its insurer, Lloyd's Underwriters, for $37,120.50 under an all-risks commercial insurance policy.

The claim arose from a fraudulent order for defibrillator units.

Lloyd's denied coverage, arguing the loss did not occur at an insured location, was not a covered type of loss (voluntary surrender to fraudster), and was excluded as a conditional sale.

The court granted summary judgment to the plaintiff, finding the loss occurred at the insured location, constituted a direct physical loss as there was no valid contract of sale due to fraud, and the conditional sale exclusion did not apply as title was not intended to be withheld.

The court declined to award punitive damages, finding the insurer's denial, while incorrect, did not meet the high threshold for malicious or high-handed conduct.

The appellant sought leave to amend his Statement of Claim to assert an alternative claim for a 33% ownership interest in the corporation, based on the theory that escrow release conditions had not been satisfied.

The motion judge denied the amendment, finding it constituted a new, statute-barred cause of action.

The Court of Appeal allowed the appeal, holding that the proposed amendments did not assert a new cause of action but rather sought alternative relief based on material facts already pleaded in the original Statement of Claim.

The court found no presumed or actual non-compensable prejudice to the respondents.

Following a successful motion by the plaintiff to amend her statement of claim, the parties made written submissions on costs.

The defendants argued they should receive costs based on an offer to settle or the principle that a party seeking to amend should pay the responding party's costs.

The court rejected the defendants' arguments, noting the plaintiff beat the offer to settle and the amendment was sought well in advance of trial, unlike the precedent cited by the defendants.

Costs were awarded to the successful plaintiff on a partial indemnity basis.

The plaintiff sought to amend her statement of claim in a wrongful dismissal action to include allegations under the Fraudulent Conveyances Act and the Assignments and Preferences Act, and to assert the corporate defendant's insolvency.

The defendants opposed, arguing the amendments were statute-barred.

The court allowed the amendments, finding they did not introduce new causes of action but rather alternative claims for relief based on the existing factual matrix, thus not subject to a limitation period.

The appellant, a dermatological clinic, appealed the dismissal of its defamation action against a respondent who posted negative online reviews claiming the laser resurfacing treatments caused volume loss to her face.

The motion judge dismissed the action under section 137.1 of the Courts of Justice Act.

The Court of Appeal upheld the dismissal, finding that while the appellant met the threshold under section 137.1(4)(a)(ii) by showing a reasonable trier could view the respondent's claims as factual statements rather than protected opinion, the appellant failed to satisfy the balancing test under section 137.1(4)(b) by not establishing that the harm suffered was sufficiently serious to outweigh the public interest in protecting the respondent's expression.

The appellant purchased a pharmacy business from the respondents and later sued for breach of warranty after a fertility clinic located in the same building closed.

The trial judge dismissed the claim, finding that the withheld information about the clinic's closure would not reasonably have deterred the appellant from completing the transaction given its limited financial impact.

On appeal, the Divisional Court upheld the trial judge's decision, finding no palpable and overriding error in his interpretation of the commercial contract or his assessment of the evidence.

The parties made written submissions on costs following a motion where the plaintiff sought leave to amend the Statement of Claim.

Success on the motion was divided; the plaintiff was unsuccessful on the primary issue but successful on two subsidiary issues.

The court found the defendants were the more successful parties but reduced their costs award by 50% to reflect their failure to consent to the amendments on which the plaintiff succeeded.

The plaintiff was ordered to pay the defendants $6,000 in costs.

The appellants appealed a motion judge's decision regarding a failed real estate transaction.

They raised two issues: first, that the motion judge erred by failing to allow credit for rent payments after the respondent failed to close; and second, that the motion judge failed to adjust the purchase price to account for wasted legal expenses.

The Court of Appeal found that while the motion judge erred in finding no authority to make the rent adjustment, the inadequate record supported dismissing that ground.

However, the Court agreed that the motion judge had authority to adjust for wasted legal expenses and that the $10,000 figure was reasonable and established on the record.

The defendant Dusan Tosic sought partial indemnity costs against the plaintiff Tania Ivic following the plaintiff's action, including a motion to amend the Statement of Claim and the defendant's motion for summary judgment.

The plaintiff failed to submit costs submissions.

The court applied the rule that costs should follow the event and found the defendant's requested costs of $5,333.07 to be fair and reasonable.

A previous costs award of $632.50 in favour of the plaintiff was set off against this amount, resulting in a net payment of $4,700.57 to the defendant.

The plaintiff sought leave to amend his Statement of Claim to include an alternative claim for a 33.3% ownership interest in the defendant corporation, based on written agreements, and to expand his oppression remedy claim to include his status as a creditor.

The court denied leave for the 33.3% ownership claim, finding it constituted a new cause of action barred by the limitation period, as it was based on a different factual matrix than the original 50% ownership claim.

However, leave was granted to amend the oppression remedy claim to include 'and/or creditor,' as this was deemed an alternative legal conclusion arising from the same factual matrix already pleaded.

The defendant Tosic brought a motion for summary judgment to dismiss the plaintiff's action against him, which alleged vicarious liability for a sexual assault committed by a taxi driver operating Tosic's taxicab.

The plaintiff brought a cross-motion to amend her Statement of Claim to add claims for breach of contract and implied warranty.

The court dismissed the plaintiff's motion to amend, finding the proposed implied warranty that the taxicab would be free from sexual assault was not legally tenable.

The court granted Tosic's motion for summary judgment, applying the Bazley v. Curry factors and finding no genuine issue requiring a trial regarding vicarious liability, as the alleged assault was not sufficiently linked to the risk introduced by the employer.

Following the successful dismissal of the plaintiff's action under the anti-SLAPP provisions of the Courts of Justice Act, the defendant sought costs on a full indemnity basis.

The plaintiff argued for no costs or a reduced amount.

The court found no reason to depart from the presumptive entitlement to full indemnity costs under s. 137.1(7).

Costs were fixed at $20,000, inclusive of fees, disbursements, and HST.

The appellants appealed a trial judgment dismissing their action against their neighbours.

The action sought injunctive relief and damages for invasion of privacy from surveillance cameras, nuisance from speakers and floodlights, trespass from fence construction, and abuse of process from a peace bond application.

The trial judge found no credible evidence of invasion of privacy, no established nuisance, no proven trespass, and no abuse of process.

The appellants alleged the trial judge failed to decide on the merits, provided inadequate reasons, and demonstrated bias.

The Court of Appeal upheld the trial judgment, finding the reasons adequate, credibility findings entitled to deference, and no reasonable apprehension of bias.

The applicant and respondent, former spouses, entered into an agreement for the applicant to purchase the respondent's home.

The applicant paid a deposit representing half the home's equity.

The transaction failed to close.

The applicant sought an order for the sale of the property under the Partition Act, claiming a one-half interest.

The court dismissed the application, finding that the applicant's interest was in the equity of the property, not an interest in the land itself, and he had no right to immediate possession.

Therefore, he did not qualify for an order of partition or sale.

Following a summary judgment motion where success was divided, the court determined the appropriate costs award.

The parties had previously agreed to cap costs at $20,000 for the successful party.

Finding that the responding party was more successful based on the issues proceeding to trial, the court ordered the moving party to pay costs fixed at $10,000.

The plaintiff purchased a pharmacy from the defendant and later sued for breach of warranty and breach of a non-competition agreement.

The plaintiff alleged the defendant failed to disclose that a nearby fertility clinic, which provided significant business, was closing.

The court dismissed this claim, finding the plaintiff overvalued the goodwill and would not reasonably have been deterred from the purchase based on the actual profit margins.

However, the court found the defendant breached the non-competition agreement by servicing customers within a 10-mile radius from a new pharmacy location, awarding $11,600 in damages.

The defendant brought a motion for security for costs under Rule 56.01(d), arguing the corporate plaintiff had insufficient assets in Ontario.

The plaintiff, an inactive corporation with its only asset being the claim, argued impecuniosity.

The court found the defendant met the low threshold for insufficient assets.

The onus shifted to the plaintiff to prove impecuniosity, which requires demonstrating that the corporation and its shareholders cannot raise funds for security.

The plaintiff failed to provide sufficient evidence regarding its sole shareholder's financial resources.

The court ordered the plaintiff to post $7,500 in security for costs, significantly less than the $45,000 sought by the defendant, finding the defendant's claim excessive for a simplified procedure action.

The plaintiff's cross-motion to strike the defence or compel document delivery/settlement was dismissed, with the defendant ordered to deliver documents after security is posted.

Costs of the motion were fixed at $1,200 for the defendant, accounting for their overreach on the security amount.