John W. Montgomery

The defendants moved for an order awarding costs after the plaintiff discontinued its action.

The court found that the plaintiff's action was commenced without justification, was speculative, frivolous, and vexatious, and made serious unsubstantiated allegations against both defendants, including breaches of contractual and fiduciary obligations.

The court applied the principles of costs law and factors under Rule 57.01(1) of the Rules of Civil Procedure, concluding that the plaintiff's conduct warranted a substantial indemnity award.

The motion for costs was granted, with specific amounts awarded to each defendant.

The applicant, Walter Burnat, sought an interim order for directions regarding the personal care and living arrangements of his 80-year-old mother, Olga Burnat, who suffers from moderate to severe dementia and requires 24-hour supervision.

Walter proposed moving Olga to a retirement residence in Richmond Hill, while the respondent, Mary Bosworth, Olga's daughter, advocated for Olga to remain in her Whitby home with a proposed home care plan.

The court, exercising its authority under the Substitute Decisions Act, 1992, found Walter's proposal offered greater certainty of care and granted the interim order for Olga to reside at the retirement residence until a suitable local facility becomes available.

A construction contractor sought payment for services and materials allegedly supplied to repair and preserve a partially completed luxury residence after the owners ran out of funds and construction stopped.

The court found that the parties had an agreement that the contractor would facilitate financing and carry out minimal repairs necessary to present the property to potential lenders.

The court accepted that certain cleanup, drywall repair, plumbing, and landscaping work had been performed with the owners’ knowledge or acquiescence.

However, recovery was limited to amounts the contractor proved it had actually paid or remained legally liable to pay.

The contractor was awarded reimbursement for proven expenditures totalling $51,000 plus interest.

The appellants appealed a trial judgment finding they breached a custom home construction contract and dismissing their counterclaim.

The respondent cross-appealed the trial judge's dismissal of its claim for future lost profits.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the trial judge's conclusions that the appellants caused the delay, that the Consumer Protection Act did not apply because the real substance of the transaction was the purchase of real property, and that the respondent did not commit trespass.

The Court allowed the cross-appeal, holding that the trial judge erred in failing to award the 20% markup as pure profit on the uncompleted portion of the cost-plus contract, and awarded the respondent $162,008.71 in damages.

The applicants sought damages after the respondent marina sold their stored vessel for $2,000 to cover alleged storage arrears.

The court found that the respondent failed to comply with the notice requirements under the Repair and Storage Liens Act, having sent notice to the wrong address and improperly claiming interest.

Furthermore, the sale price of $2,000 was commercially unreasonable given the vessel's appraised value of $46,750.

The court awarded the applicants damages totaling $60,863.05 for the loss of the vessel, personal property, and related expenses.

Following a prior motion decision, the court addressed written submissions on costs.

The applicant sought costs of both the motion and an earlier assessment before an Assessment Officer.

The court declined to determine the costs of the earlier assessment, holding that such submissions should have been made to the Assessment Officer who conducted the hearing.

Exercising discretion under s. 131 of the Courts of Justice Act and considering the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court found the applicant entitled to costs of the motion.

Partial indemnity costs of $7,992 plus HST and disbursements were awarded as fair, reasonable, and proportionate.

Following a trial decision awarding equitable compensation to the plaintiff, the parties disputed the calculation of damages.

The court resolved issues regarding the proportionality of property taxes, mortgage payments, and rent receipts to be deducted from the plaintiff's award.

The court also determined the appropriate method for calculating pre-judgment interest under the Courts of Justice Act, rejecting both parties' overly complicated approaches.

Judgment was granted in favour of the plaintiff for $4,976,925.32.

The appellant appealed a decision approving the passing of accounts by the respondent, his brother and the estate trustee of their late father's estate.

The appellant argued that the application judge erred by not ordering a trial of an issue regarding a forgiven promissory note and the respondent's claim for compensation under the Substitute Decisions Act.

The Divisional Court dismissed the appeal, finding that the application judge had ample evidence to conclude a trial was unnecessary and made no error in principle in approving the compensation.

The appellant loaned the respondent $150,000 secured by a demand promissory note in 1997.

The last interest payment was made in 1998.

The appellant demanded repayment in 2004 and commenced an action in 2005.

The Court of Appeal held that the new Limitations Act, 2002 did not change the common law rule that a demand note matures upon delivery.

Applying the transition provisions in section 24(5), the court found the claim was discovered before January 1, 2004, meaning the former six-year limitation period applied.

The action was therefore statute-barred.

The appellants opened a hydro account personally in 1967.

In 1975, they incorporated a business which thereafter paid the account.

The trial judge found the appellants remained personally liable for the account because there was no evidence of assignment or novation to the corporation.

The Court of Appeal found no palpable and overriding error in the trial judge's findings and dismissed the appeal.

The appellant appealed a trial judgment to the Court of Appeal.

The Court of Appeal determined that the trial judge's order was for a single payment of not more than $25,000, exclusive of costs.

Consequently, the appeal fell within the monetary jurisdiction of the Divisional Court, and the Court of Appeal ordered the matter transferred there with no costs.

The Court of Appeal amended its previous endorsement to provide that the costs of the trial are to be decided by the judge presiding at the new trial.

The court noted that the existence of offers to settle should have been brought to its attention when judgment was given orally.

The new trial judge will be in a position to determine the appropriate application of Rule 49.10 in light of the determination of damages.

The appellant appealed a trial judgment regarding his constructive dismissal claim.

The trial judge found that if the appellant had agreed to relocate to St. Catharines, his working conditions would not be substantially different from those in Simcoe.

The Court of Appeal held that the trial judge erred, as the relocation would require three hours of daily commuting and significant out-of-pocket driving costs, making the working conditions and net remuneration substantially different.

The appeal was allowed, the cross-appeal on constructive dismissal was dismissed, and a new trial was ordered to determine damages.

The appellant, a lawyer, was charged with theft and criminal breach of trust for misusing clients' trust funds.

He was convicted of theft but acquitted of criminal breach of trust at trial.

The Court of Appeal allowed the Crown's appeal, entering convictions for criminal breach of trust, and applied the Kienapple principle to acquit on the theft charges.

The Supreme Court of Canada dismissed the appellant's appeal, affirming that the trial judge erred in law regarding the intent to defraud in criminal breach of trust.

Lamer J. noted that in the future, the Kienapple principle should result in a stay of proceedings rather than an acquittal.

L'intimé a été déclaré coupable d'homicide involontaire coupable et d'avoir causé illégalement un incendie à la suite du même événement.

La Cour d'appel a appliqué le principe Kienapple pour annuler la déclaration de culpabilité relative à l'infraction secondaire.

La Cour suprême du Canada a rejeté le pourvoi de la Couronne, confirmant l'application du principe Kienapple.

The respondent was convicted of manslaughter and unlawfully setting a fire arising out of the same incident.

The Manitoba Court of Appeal applied the Kienapple principle to set aside the conviction for the secondary offence of unlawfully setting a fire.

The Crown appealed to the Supreme Court of Canada.

The Supreme Court dismissed the appeal, agreeing with the majority of the Court of Appeal that the Kienapple principle applied.