Jordan Daniel Moses Diacur

In this contract interpretation dispute, the plaintiff developer (Losani) sought payment from the defendant developer (Tobyn Park Homes) for the defendant's share of infrastructure costs under a Construction and Cost Sharing Agreement.

The central issue was whether interim payments were due upon issuance of Progress Certificates by the consulting engineer, or whether payment could be deferred until the City of Hamilton formally accepted the works as complete.

The court found that the CSA clearly required interim payments within 20 days of each Progress Certificate, and that the External Works Agreement (annexed to the CSA) addressed only the standard for final completion, not the timing of interim payments.

All of Tobyn's payments were late, and interest at 15% per annum, compounded monthly, accrued on all amounts owing.

The appellant City of Hamilton appealed a trial judgment finding it and ArcelorMittal Dofasco Inc. (AMD) jointly and severally liable for damages arising from periodic flooding of the respondent National Steel Car Limited's industrial property caused by wastewater discharge into a clogged drainage channel.

The trial judge awarded compensatory damages of approximately $5.3 million (apportioned equally between the defendants), punitive damages of $400,000 against the City and $500,000 against AMD, and granted a mandatory injunction requiring remediation and maintenance of the channel.

The City appealed on four grounds: (1) the equal apportionment of liability; (2) failure to find mitigation by National; (3) the punitive damages award; and (4) the terms of the injunction.

The Court of Appeal dismissed the appeal except for a clarification to the injunction language.

The applicant corporation sought an extension of time to perfect an appeal of a trial judgment dated June 27, 2025.

The non-lawyer representative sought leave to represent the corporation pursuant to Rule 15.01(2) of the Rules of Civil Procedure.

The motion judge refused leave to represent the corporation, finding that the representative had repeatedly filed factums containing fabricated legal citations, non-existent cases, miscited authorities, false statutory provisions, and fabricated quotations.

The court held that while access to justice is a relevant consideration, the integrity of the justice system and the undue burden imposed on opposing counsel and the court outweighed such considerations.

The motion for extension of time was adjourned, and the corporation was directed to appoint a lawyer within 30 days or face dismissal of both the motion and the appeal.

The applicant sought to quash a municipal by-law establishing a new municipal accommodation tax on the grounds that it violated the Municipal Act by attempting to repeal a by-law under which a debt had been contracted, and that it was passed in bad faith to vitiate a valid and subsisting agreement.

The court found that the revenue sharing arrangement under the transient accommodation tax did not constitute a debt under the Municipal Act, and that the municipality had not acted in bad faith in passing the new by-law.

The court dismissed the application, finding that the municipality retained the power to enter into agreements with eligible tourism entities and that no exclusivity was granted to the applicant.

The applicants, 14 homeless individuals, sought a declaration that the City of Hamilton's enforcement of its Parks by-law from August 2021 to August 2023 breached their Charter rights under s.7 (life, liberty, security of the person) and s.15 (equality), and sought damages.

The applicants argued they were prevented from staying overnight and forced to move daily due to insufficient accessible shelter beds.

The court found that applicants were not prevented from staying overnight and declined to extend Charter protection to allow indefinite daytime encampments, disagreeing with prior jurisprudence (Victoria v. Adams, Waterloo v. Persons Unknown) on the basis that encampments are inherently dangerous and unsanitary, and the City's actions were not in bad faith.

The court also found no s.15 violation, as homelessness is not an enumerated or analogous ground, and the by-law did not differentially treat disadvantaged groups.

The application was dismissed.

This appeal concerned an estate dispute where the appellant sought to exercise dissent rights under the Ontario Business Corporations Act (OBCA) in response to the liquidation of a family-owned holding company.

The application judge found these rights were waived by a Unanimous Shareholders Agreement (USA).

The Court of Appeal dismissed the appeal, affirming that the USA's provisions clearly waived dissent rights and that this interpretation was consistent with the company's purpose of managing estate assets.

The Court of Appeal considered whether a beach easement was expressly extinguished by an application to the Registrar of Land Titles.

The lower court had found the deletion was an error and ordered rectification.

The appellate court determined that the application judge erred in law by misinterpreting the application as lacking an express release, despite the dominant owner's clear intent and request to delete the easement.

The appeal was allowed, the rectification order set aside, and the original application dismissed, confirming the easement's extinguishment.

The defendant brought a motion for an order requiring the plaintiff, a corporation, to post security for costs.

The plaintiff claimed impecuniosity, arguing it had no assets or income.

The court found that the plaintiff failed to provide sufficient disclosure regarding its financial viability and its shareholders' ability to borrow, thus failing to establish impecuniosity.

The court also assessed the merits of the plaintiff's negligence claim, finding it did not have a good chance of success, and considered the defendant's delay in bringing the motion.

Applying a holistic approach, the court granted the motion, ordering the plaintiff to post $25,000 in security for costs on a partial indemnity scale within 90 days.

PC Forge, a manufacturer of custom forgings, sued BRC Motorsport Inc. for breach of contract and moved for summary judgment.

The parties had an agreement where PC Forge would pre-order raw materials and inventory forgings to reduce lead times, with BRC committing to pay for all purchase orders.

BRC repudiated the contract, failing to pay for a significant portion of ordered and manufactured goods.

The court found a clear contract existed, BRC breached it, and BRC's attempt to rely on unauthenticated terms and conditions was rejected.

The court also found that PC Forge had made reasonable efforts to mitigate its losses.

Summary judgment was granted in favour of PC Forge for damages totaling $205,907.24 plus pre- and post-judgment interest.

This appeal concerned the correct approach to defamation and civil conspiracy pleadings in the context of a motion to strike.

The Divisional Court had struck out the defendant's counterclaim, finding it lacked particularity.

The Court of Appeal allowed the appeal, holding that the Divisional Court misapplied the modern, flexible approach to pleadings and failed to read the pleadings generously.

The Court of Appeal reinstated the motion judge's decision, which had dismissed the motion to strike, emphasizing the high bar for striking pleadings and the deference owed to motion judges.

The applicant sought a declaration of beneficial ownership of a property, arguing for a bare trust or, alternatively, a constructive trust due to unjust enrichment.

The respondents, estates of former officers, claimed ownership.

The court found no express bare trust due to lack of certainty of intention and objects.

However, it found unjust enrichment of the respondents' estates and corresponding deprivation of the applicant, with no juristic reason for the enrichment.

A remedial constructive trust was imposed on the sale proceeds, with the applicant receiving 75% and the respondents' estates receiving 25%.

The appellant was arrested by Ontario Provincial Police officers while walking to a counter-protest flag rally, having committed no offence and presenting no threat of violence.

The police relied on a purported common law power to arrest someone acting lawfully in order to prevent an apprehended breach of the peace by others.

Applying the ancillary powers doctrine, the Court held that no such common law power exists: the power is not reasonably necessary because statutory arrest powers already address situations where individuals resist or obstruct officers taking less intrusive measures, and effectiveness of a police action alone cannot justify an arrest if less intrusive means were available.

The Court restored the trial judge's award of damages for battery, wrongful arrest and false imprisonment, and found no new trial was warranted on the issue of excessive force because the arrest itself was unlawful.

The appellant construction company appealed a decision by the application judge who found that the respondents had made lasting improvements to property sufficient to trigger claims under the Conveyancing and Law Property Act, s. 37, and in one case, proprietary estoppel.

The appellant argued the application judge erred by failing to direct a trial of the contested factual issues or convert the application into an action.

The Court of Appeal dismissed the appeal, finding no error in proceeding by application where the respondents had not objected and the factual issues were apparent from the outset.

The Court also found no palpable and overriding error in the application judge's factual findings regarding the lasting improvements made by the respondents.

This is a costs endorsement following the Court of Appeal's decision allowing an appeal of a trial judgment in a civil action involving allegations of excessive force during arrest.

The respondent sought to avoid paying the costs of the appeal on the basis that the matter constituted public interest litigation.

The Court of Appeal rejected this argument, finding that the nature of the proceeding did not fall within the recognized categories of public interest litigation.

The appellants were awarded costs of the appeal in the amount of $25,000 inclusive of disbursements and HST.

This endorsement addresses two applications concerning the estate of Frank Ernest Warren: one by the estate trustees to pass their accounts, and a cross-application by beneficiary Cheryl Bolton alleging breach of trust, breach of fiduciary duties, and seeking the removal of the trustees and reimbursement for improperly converted monies and excessive legal fees.

The estate, valued at approximately $316,000, included a "Henson-like" trust for Ms. Bolton, who receives ODSP.

The court found that the trustees, who resided in Scotland, unduly burdened the estate.

The court disallowed the trustees' compensation, significantly reduced the legal fees charged by their counsel (finding 70% of clerk time was for trustee work and disallowing certain legal research), and ordered the removal of the estate trustees.

Reimbursement for the trustees' flights, hotel, and meal expenses was approved.

The court was particularly troubled by the trustees' proposal to collapse the Henson trust, which would have been detrimental to the beneficiary and contrary to the testator's wishes.

The court assessed costs following a judgment dismissing the plaintiffs' action and the Smiths' counterclaim, with costs payable on a full indemnity basis.

The defendants by counterclaim, Damandeep-Singh Aujla and Daman Aujla Professional Corporation, sought full indemnity costs.

The court found the proceedings complex, involving multiple parties and transactions, and noted the Smiths' lack of credibility, delay tactics, and refusal to admit key facts.

The claims against Mr. Aujla, a professional, were of great importance and impugned his integrity.

The court found the hourly rates of counsel reasonable and awarded full indemnity costs to Damandeep-Singh Aujla and Daman Aujla Professional Corporation, totaling $43,486.92, after disallowing Westlaw Research as an overhead expense.