Jonathan Lyon Mendes Miller

Following a decision on consolidated applications regarding a prescriptive easement over a cottage property pathway, the parties could not agree on costs.

The applicants sought up to $57,208.40 in full indemnity costs, while the respondent, who incurred over $150,000, sought no costs or partial indemnity.

The court found that success was divided, as the applicants secured access but with significant restrictions on dimensions and uses, while the respondent successfully limited the pathway's expansion.

Consequently, the court made no order as to costs.

The applicants sought a declaration of a prescriptive easement over a pathway on the respondent's adjacent cottage property to access an elevated portion of their land.

The court found that the applicants established the four elements of a prescriptive easement by lost modern grant for the period prior to the properties' conversion to the Land Titles system in 2007.

However, the court limited the easement to its historical dimensions and uses, ordering the applicants to remove unauthorized alterations and chattels.

The applicant sought an order validating a draft will pursuant to s. 21.1(1) of the Succession Law Reform Act on behalf of a deceased who died of a sudden heart attack twelve days after the draft was prepared, before it was signed or witnessed.

The court found that while the deceased had capacity and clear general intentions to benefit the applicant and others over his estranged siblings, the applicant failed to establish that the draft will reflected a deliberate or fixed and final expression of testamentary intention.

There was no evidence the deceased had reviewed the draft, the deadline for suggested corrections had not expired at the time of death, and discrepancies existed between the draft and the deceased's earlier handwritten notes.

The application was dismissed; costs submissions were invited but the court noted the estate may appropriately bear the successful respondent's costs given the reasonable grounds for bringing the application.

The plaintiff, a Paraguayan pension fund, brought a motion seeking a declaration of contempt against the defendants for failing to comply with a previous fraud judgment and non-dissipation order, and various ancillary orders compelling accounting, asset transfers, and examinations in aid of execution.

The court declined to find the defendants in contempt due to the high evidentiary threshold but granted most of the other relief sought, ordering the defendants to provide a full accounting of defrauded funds, sell a property in Guatemala and transfer the proceeds, provide tax returns, cease defamatory statements, pay outstanding costs, and re-attend examinations.

The request to examine the defendants' daughter was denied without prejudice.

The appellant tenant appealed an order of the Condominium Authority Tribunal holding him jointly and severally liable with his landlord to pay $18,239.60 in compensation to the condominium corporation.

The Divisional Court allowed the appeal, finding a breach of procedural fairness because the corporation had not requested this relief against the tenant and the Tribunal's procedural order did not list it as an issue.

The Tribunal's order was varied to make the landlord solely liable for the compensation.

The appellant requested a last-minute adjournment of the third Case Management Conference to facilitate ongoing settlement discussions regarding appeals of a zoning by-law amendment and official plan amendment for a 21-storey residential building.

All parties consented to the request.

The Ontario Land Tribunal granted the adjournment and scheduled a fourth Case Management Conference.

The plaintiffs brought an urgent, without-notice motion for a Mareva injunction and Norwich order against the defendants, alleging a fraudulent investment scheme.

The defendants, including Richard Nicholson and his company NWR Financial Group, allegedly induced the plaintiffs to invest USD $670,000 in a non-existent hedge fund, Legacy Investors Group Inc., promising high returns.

The court found a strong prima facie case of fraud, evidence of asset dissipation by Nicholson (e.g., luxury purchases, sale of home), and that the balance of convenience favoured granting the injunction to preserve assets.

The court also granted the Norwich order, finding that the five factors for disclosure from non-party financial institutions were met, as they were the only practical source of information regarding the flow of funds.

The applicant condominium corporation sought orders against a unit owner and his tenant regarding persistent noise, nuisances, and abusive behaviour towards staff by the tenant and his co-resident.

The Condominium Authority Tribunal found that the tenant's conduct violated the condominium's declaration and rules.

The Tribunal ordered the tenant to cease all disruptive conduct and ordered the owner to take reasonable steps to ensure compliance.

The owner and tenant were ordered to jointly and severally pay $18,239.60 in compensation, and the owner was ordered to pay an additional $8,551.50 in costs due to his failure to address the tenant's non-compliance.

The applicant father brought a contempt motion against the respondent mother for her failure to comply with a November 2, 2022, court order regarding the resumption of his parenting time with their daughter.

The daughter, now eleven, resisted visits, and the mother's efforts to facilitate them were deemed insufficient.

The court found the mother in contempt, emphasizing the parental duty to encourage the child's relationship with the other parent and rejecting the child's reluctance as a valid excuse for non-compliance.

The applicant unit owner brought an application before the Condominium Authority Tribunal alleging that upgraded telecommunications antennae on the condominium's roof constituted a nuisance, annoyance, and disruption.

The applicant argued that the antennae unreasonably interfered with the use and enjoyment of her penthouse unit and balcony, primarily due to their appearance and a speculative reduction in property value.

The Tribunal found that the antennae did not create noise or vibration, nor did they physically impede the use of the balcony.

Relying on established jurisprudence, the Tribunal held that a partially obstructed view over the roofline and speculative future loss of resale value do not constitute an unreasonable interference or nuisance.

The application was dismissed, and no costs were awarded to either party.

The appellants, a real estate broker and brokerage, brought a motion to stay a Tribunal order revoking their registrations pending an appeal to the Divisional Court.

The Tribunal applied the RJR-MacDonald test for a stay.

While finding that the appeal raised a serious issue and the appellants would suffer irreparable financial harm, the Tribunal concluded that the balance of convenience favoured the Registrar.

Given the serious findings of past misconduct, including misuse of trust funds and threatening clients, the public interest in protection outweighed the appellants' financial interests.

The motion for a stay was denied.

The Registrar proposed to revoke the registrations of a real estate broker and his brokerage under the Real Estate and Business Brokers Act, 2002.

The Tribunal found that the broker had misappropriated trust funds, falsified bank statements, engaged in abusive and unprofessional communications with clients and the regulator, and made false statements on a registration application.

The Tribunal concluded that the broker's past conduct afforded reasonable grounds for belief that he would not carry on business in accordance with law and with integrity and honesty.

Finding that conditions would not sufficiently protect the public, the Tribunal directed the Registrar to carry out its proposal to revoke the registrations.

The appellant, a registered real estate salesperson, appealed a Notice of Proposal to suspend his registration for failing to comply with a prior discipline order requiring payment of a fine and completion of an educational course.

The parties reached an agreement after the appellant demonstrated progress in paying the fine and completing the course.

The Tribunal issued a consent order requiring the appellant to continue paying the fine in installments and provide proof of course completion, resulting in the withdrawal of the Notice of Proposal and the appeal.

This motion involved cross-applications concerning pleadings amendments and disclosure of settlement minutes in a professional negligence action against a solicitor.

The plaintiffs sought to amend their statement of claim to limit damages to the defendant's proportionate share of fault.

The defendant sought production of confidential settlement minutes from related estate litigation, arguing their relevance to damages and the ability to defend the claim, and also sought leave to add third parties and amend his statement of defence.

The court granted the plaintiffs' motion to amend their claim.

Crucially, the court ordered the disclosure of the settlement minutes, finding them relevant to the assessment of damages and that the public interest in a fair trial and preventing overcompensation outweighed the interest in settlement confidentiality, especially given the confidentiality clause allowed disclosure by court order.

The court also granted the defendant leave to amend his statement of defence.

The moving parties brought a motion for leave to appeal from a decision of Ferguson J. The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $15,000, in accordance with the terms of the Occupancy Licence.

The respondent was entirely successful in defending an injunction motion and sought costs on a substantial indemnity basis.

The applicants argued that costs should be deferred to the judge hearing the balance of the application.

The court declined to defer costs, noting the uncertainty of the application proceeding.

While the court found the applicants' conduct did not warrant substantial indemnity costs, it noted their improper conduct in splitting their case and unnecessarily complicating the motion.

The court awarded the respondent costs fixed at $60,000 inclusive of HST and disbursements.

The plaintiff property developer brought a motion for an interlocutory injunction to compel the defendant purchasers to vacate a condominium townhouse and prevent their re-entry.

The defendants had taken interim occupancy but failed to close the transaction, refused to sign extension agreements, made unauthorized alterations to the unit, and engaged in abusive and harassing behaviour toward the plaintiff's staff.

The court granted the mandatory injunction, finding the defendants were trespassers, the plaintiff established a strong prima facie case, and the plaintiff was suffering irreparable harm to its property rights and reputation.

Daniella Leis pleaded guilty to four counts of impaired driving causing bodily harm following a collision that severed a gas line, leading to a massive explosion in a residential area and serious injuries to four first responders.

The court considered aggravating factors, including high blood alcohol concentration and dangerous driving, and mitigating factors, such as her guilty plea, lack of prior record, and Indigenous background (Gladue factors).

The judge balanced the need for denunciation and general deterrence with the offender's personal circumstances and the impact of the COVID-19 pandemic on incarceration conditions.

A three-year penitentiary sentence was imposed, along with a three-year driving prohibition.

The applicants, who were the developer and manager of the respondent condominium corporation, sought an interlocutory or permanent injunction to restrain the respondent from evicting them from a Visitor Centre they leased.

The respondent had terminated the management agreements and the lease following a breakdown in the relationship.

The court dismissed the motion, finding that while there was a serious issue to be tried regarding the termination of the agreements, the applicants failed to establish irreparable harm and the balance of convenience strongly favoured the respondent, which needed the Visitor Centre to manage the property.

The appellant sued the directors and auditors of a credit union after losing his $5 million investment, alleging misrepresentations in an offering statement.

Midway through the trial, the appellant sought to amend his statement of claim to allege a new misrepresentation regarding the credit union's failure to obtain property appraisals.

The trial judge refused the amendment, finding it asserted a new cause of action that was discoverable years earlier and was therefore statute-barred.

The Court of Appeal upheld the trial judge's decision, confirming that the proposed amendment relied on a different act and a separate failure to disclose, which was not encompassed by the original pleadings.