Jordan Nussbaum

The plaintiff trustee in bankruptcy brought a Rule 20 motion for summary judgment against a food and beverage wholesaler for $94,721.50 representing eight unpaid invoices for frozen seafood products.

The defendant denied placing any orders after May 2023, asserting the products were delivered without a contract.

The court identified three concerns: absence of direct contractual evidence, no affidavit from the key Toppits sales representative who allegedly made the oral contracts, and credibility issues with the defendant's principal that required viva voce evidence to resolve properly.

Applying the two-step Hryniak framework, the court found it could not make a fair and just determination on the motion and dismissed the summary judgment motion, directing the matter to trial.

This costs endorsement follows a judgment dismissing the plaintiffs' claims and largely granting the defendant's counterclaim regarding property ownership and accounting.

The court addressed the plaintiffs' argument that costs should be capped under simplified procedure rules, rejecting it because the action predated the rule change.

The defendant sought substantial indemnity costs based on an offer to settle.

The court, however, awarded partial indemnity costs, finding that substantial indemnity generally requires reprehensible conduct, which was absent in this case.

The court assessed the quantum of costs based on proportionality, reasonableness, and the parties' expectations, making adjustments to the defendant's claimed amount.

This appeal concerned a property zoned agricultural, where the Estate Trustees sought a declaration for legal non-conforming use for commercial purposes, including outdoor storage of vehicles and equipment.

The application judge dismissed the declaration, finding the uses were not lawful under the relevant zoning by-law.

The appellants also sought leave to appeal the application judge's refusal to award them costs for a successful contempt motion.

The Court of Appeal dismissed the appeal regarding the declaration, affirming that the commercial activities were not lawful non-conforming uses.

It also granted leave to appeal the costs issue but dismissed the appeal, upholding the application judge's discretionary decision on costs.

The appellants appealed a decision dismissing their application for a declaration that their current use of lands was a legal non-conforming use under the Planning Act.

The application judge found that the use had changed significantly from the prior legal non-conforming use and that the appellants had abandoned the prior use.

The Court of Appeal dismissed the appeal, upholding the application judge's factual findings and her conclusion that the appellants failed to establish a continuing legal non-conforming use.

The court also confirmed the admissibility of property complaints as factual matters from records kept in the ordinary course of business.

The applicant son brought a motion within a guardianship application to determine his 91-year-old father's capacity to instruct counsel, and to enforce previous orders regarding financial disclosure and access visits.

The father, who suffers from aphasia, had been assessed by multiple capacity assessors.

The court found the father had capacity to instruct counsel regarding his personal care and residence, but lacked capacity to instruct on property matters due to his inability to understand a disputed $280,000 mortgage.

The court directed the Public Guardian and Trustee to arrange section 3 counsel for the father, ordered the respondent siblings to provide the long-overdue accounting, and enforced the applicant's access visits, awarding substantial indemnity costs against the respondent siblings for their reprehensible conduct in delaying the proceedings.

The applicants sought a declaration that their property's current use (outside storage of vehicles, machinery, equipment, commercial/business operation, storage of trucks/trailers, shipping containers) constituted a legal non-conforming use under s. 34(9) of the Planning Act, which would set aside municipal Orders to Comply.

The respondent sought dismissal, or a declaration limiting the non-conforming use to 4 trucks and 7 trailers.

The court found that while the property had a prior legal non-conforming use as a trucking business with ancillary parking and storage, the applicants' current use had significantly changed in nature and intensity, including storage of derelict vehicles, a fuelling station, and a junk yard, which were too remote from the original use and caused undue neighbourhood impact.

Consequently, the applicants lost the protection of s. 34(9) of the Planning Act, and their application was dismissed, making the Orders to Comply enforceable.

Following an application regarding the continuation of a legal non-conforming use, the applicant sought costs of $60,186.30 on a partial indemnity basis.

The respondent argued for each party to bear their own costs due to divided success, or alternatively $20,000.

The court found there was genuinely divided success as the applicant was successful on the declaration but overreached on the injunction, which the respondent successfully resisted.

Applying Rule 57.01, the court awarded the applicant costs fixed at $38,000 all-inclusive.

The applicant sought declarations regarding the continuation of legal non-conforming uses on his property, affirmation of an existing injunction against the Town, and an order to register court judgments on title.

The court granted declarations affirming that the property's uses, including a motor vehicle compound, were a continuation of previously recognized legal non-conforming uses.

The court dismissed the requests for an affirmation of the injunction, finding no contravention by the Town, and for an order to register judgments, deeming it a matter for the Land Titles system.

The plaintiff municipality brought a motion to hold the defendants in contempt of a 2019 court order requiring them to remove an encroaching fence and cease illegal business operations and storage on specific properties.

The defendants admitted non-compliance but argued that the COVID-19 pandemic and financial hardship prevented them from obeying the order.

The court rejected this defence, finding that financial hardship does not excuse deliberate disobedience of a court order.

The court found the defendants in contempt beyond a reasonable doubt regarding two of the properties and the fence, and directed the parties to schedule a sentencing hearing.

The Court of Appeal for Ontario addressed its jurisdiction to hear an appeal from an order granting vacant possession.

Despite arguments from the parties, the court determined that the order fell under s. 78(1) of the Commercial Tenancies Act, which directs such appeals to the Divisional Court.

Consequently, the Court of Appeal transferred the appeal to the Divisional Court pursuant to s. 110(1) of the Courts of Justice Act, declining to hear the merits.

No costs were ordered.

Following a successful motion to enforce zoning bylaws and property rights, the plaintiff municipality sought costs.

The defendants argued the motion was unnecessary and sought their own costs.

The court found the plaintiff acted properly in bringing the motion in the public interest and was entitled to costs.

The court awarded the plaintiff partial indemnity costs and costs thrown away, totalling $71,220.90.

The defendants brought a motion for security for costs under Rule 56.01(1)(d), arguing the plaintiff, a sole-purpose corporation, had insufficient exigible assets in Ontario.

The court found the defendants met the low threshold to trigger the inquiry, shifting the onus to the plaintiff.

The plaintiff failed to demonstrate sufficient exigible assets, as its bank account funds could be disbursed, and other listed assets (debt, letters of credit, water units) were not readily exigible.

The court ordered the plaintiff to post security for costs in tranches totaling $24,000 and pay $10,064.78 in costs for the motion.

The defendant in a personal injury action moved to compel the plaintiff to produce social media content (Facebook and Instagram) from three years pre-accident to present.

The plaintiff alleged severe injuries, including inability to wear high heels or dance, and loss of interest in social activities.

The defendant's private investigator obtained screen captures showing the plaintiff dancing and wearing high heels, contradicting her claims.

The court considered the relevance of social media content to the plaintiff's alleged physical limitations and enjoyment of life, balancing it against privacy interests.

It also addressed the requirement for leave to bring such a motion close to trial.

The motion was granted, ordering the plaintiff to produce electronic or paper copies of photographs from her Facebook and Instagram accounts.

The appellant, Sikh Spiritual Centre Toronto, appealed a motion judge's decision refusing to set aside a consent order dated February 4, 2016 that enforced a settlement agreement between three not-for-profit charitable corporations operating Sikh temples.

The settlement concerned repayment of loaned monies.

The appellant argued the settlement was entered into without proper authority and was improvident.

The motion judge found the Director who authorized the settlement had proper authority from the Board of Directors and that the settlement was reasonable.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding errors and declining to interfere with the discretionary costs award.

The moving party, a religious corporation, brought a motion to set aside a consent order that enforced a settlement agreement regarding unpaid loans.

The moving party argued the settlement was executed by a rogue director without board authorization and that its former counsel consented to the order against instructions.

The court dismissed the motion, finding that the director had consulted the board and obtained approval, the counsel acted on valid instructions, and there was no material change in circumstances or clear injustice to warrant setting aside the final order.

Members of Branch 1-7 of the Polish Alliance of Canada sought to withdraw from the organization and take with them a property held in trust for the branch members.

The trial judge found that 100% of the branch members had voted to leave and applied the "clubman's veto" doctrine, permitting them to depart with the property.

The Polish Alliance of Canada appealed, arguing that the clubman's veto did not apply because PAC was incorporated under the Corporations Act.

The Court of Appeal dismissed the appeal, holding that the clubman's veto applied to the unincorporated branch and that there was no statutory displacement of the common law rule.

The applicants, comprising 100% of the members of Branch 1-7 of the Polish Alliance of Canada, sought a declaration that they were entitled to leave the organization and take with them the property held in trust for them by the Polish Association of Toronto Limited.

The respondent argued that the property belonged to the central organization and raised issues regarding the rule against perpetuities.

The court applied the common law 'clubman's veto', finding that the unanimous members of an unincorporated association could disaffiliate and take their property.

The application was granted, and the applicants were awarded costs.