Jordan Daniel Moses Diacur

The plaintiff subcontractor brought an action for breach of contract and unjust enrichment against the defendant general contractor and owner after a dispute over site conditions for waterproofing work.

The defendant counterclaimed, alleging the plaintiff abandoned the project and failed to provide adequate manpower.

The court found that the plaintiff did not breach the contract and reasonably refused to apply waterproofing in unsuitable, wet conditions.

The court held that the defendant anticipatorily repudiated the contract by issuing an unsubstantiated Notice of Default, seizing the plaintiff's equipment, and hiring a replacement contractor.

The plaintiff was awarded $201,871.74 for outstanding money owed, while the defendant's counterclaim was dismissed.

The appellant appealed an application judge's decision that the respondent was free to sell a property to a third party despite the appellant's right of first refusal under a lease.

The appellant had exercised its right of first refusal by matching a third-party offer, which included a 30-day financing condition.

The appellant failed to obtain financing, requested an extension which was refused, and the agreement expired.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's commercially reasonable interpretation that the right of first refusal was exercisable only once and was spent after the appellant failed to waive the financing condition.

The applicants, five individuals experiencing homelessness, sought an interlocutory injunction to prevent the City of Hamilton from enforcing a by-law prohibiting camping in city parks.

They argued that enforcement during the COVID-19 pandemic and housing crisis violated their rights under section 7 of the Charter and the Human Rights Code.

The court applied the RJR-MacDonald test.

While finding a serious issue to be tried, the court concluded the applicants failed to establish irreparable harm specific to themselves, as they had been offered or received shelter.

The court also found the balance of convenience favoured the City, citing the public interest in safe parks, the City's efforts to provide shelter and supports, and the health and safety risks associated with the encampments.

The motion for an injunction was dismissed.

The plaintiffs brought a motion to compel the defendants, the City of Hamilton and the Hamilton Region Conservation Authority, to answer questions refused during examinations for discovery.

The underlying action involves a minor plaintiff who sustained catastrophic injuries after falling from a trail at Albion Falls Park.

The court reviewed the refused questions, applying the test for relevance under Rule 31.06 of the Rules of Civil Procedure.

The court ordered the defendants to answer several questions related to prior safety concerns, incident reports, and the identities of individuals with knowledge, while upholding refusals for irrelevant questions.

Success was divided, and costs were awarded to the plaintiffs.

The appellants appealed an interlocutory order dismissing their motion to strike the respondent's counterclaim for defamation and civil conspiracy.

The respondent, a former condominium board member, alleged he was the victim of a smear campaign orchestrated by the appellants that led to his removal from the board.

The Divisional Court allowed the appeal and struck the counterclaim without leave to amend.

The Court held that the respondent failed to plead a prima facie case of defamation against any specific individual, which is a prerequisite to relying on the modern, relaxed approach to defamation pleadings.

The civil conspiracy claim was also struck as it was entirely duplicative of the defective defamation claim.

The moving parties brought a motion for leave to appeal the order of Parayeski J. dated September 23, 2020.

The Divisional Court dismissed the motion and awarded costs to the responding parties fixed at $2,126.89.

The moving parties brought a motion for leave to appeal an order dated July 14, 2020.

The Divisional Court granted leave to appeal and fixed the costs of the leave motion at $3,500, with entitlement to those costs reserved to the panel hearing the appeal.

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.