Judy Fowler Byrne

The appellant appealed from a Superior Court decision upholding an Ontario Court of Justice decision dismissing his motion to appoint private counsel for his two children.

The appellant sought to have private counsel appointed to conduct an investigation into the children's wishes regarding access arrangements, similar to what the Office of the Children's Lawyer would do.

The motion judge dismissed the motion, finding that the children had been consulted by OCL counsel two years prior and had indicated no desire for change, that they were well-functioning and not exhibiting behavioral or academic issues, and that appointing counsel would not be in their best interests.

The Superior Court upheld this decision, finding no palpable and overriding error.

The Court of Appeal dismissed the appeal, holding that the appointment of counsel for children is discretionary under the Family Law Rules and must focus on the best interests of the children, to which deference is owed to the motion judge's assessment.

The parties, former common-law partners, sought interpretation and enforcement of a mediated settlement agreement concerning the buyout of their shared veterinary and fitness businesses.

The applicant sought interest, damages, and costs due to delayed financing, while the respondent sought reductions for alleged undisclosed debts (HST, snow clearing, advertising, bad debt) and accounting/legal fees.

The court dismissed most claims from both parties, finding that the respondent was responsible for business accounts payable and that the delay in financing was attributable to both parties' actions regarding financial records.

The applicant was granted interest as per the original consent order, but no additional damages or costs.

The respondent's claims for deductions and professional costs were dismissed.

An application was brought by a daughter against her brother, as estate trustee, seeking an order that a house, which passed to the brother by right of survivorship, be held in trust for the beneficiaries of their father's Will.

The applicant argued for a resulting trust, asserting that the father did not intend to gift the beneficial interest in the property to the brother.

The court examined the father's intention at the time of transfer, considering evidence from the father's solicitor and the services provided by the brother.

The application was dismissed, as the court found abundant evidence that the father intended the brother to have the entire beneficial interest in the house upon his death.

The plaintiffs sought prejudgment interest (PJI) from September 30, 2009, the date the cause of action arose, rather than September 1, 2011, the date the statement of claim was issued, despite the latter yielding a higher prescribed rate.

The court, relying on its prior judgment, found the defendant Ashton Pools liable for inadequate concrete base installation causing patio cracking.

Applying sections 128-130 of the Courts of Justice Act and principles that PJI compensates for loss of money use, the court awarded PJI from the cause of action date, September 30, 2009, until May 2, 2016, in the amount of $1,195.45, plus post-judgment interest.

Homeowners brought a claim against a swimming pool installer for breach of contract regarding the installation of a pool and concrete patio that developed significant cracks due to inadequate base material and insufficient control joints.

The court found the installer liable for breach of express and implied warranties, rejecting the installer's reliance on exclusion clauses because the onerous terms were not brought to the homeowners' attention.

Damages were awarded for patio replacement, driveway repair, and other deficiencies.

The installer's counterclaim for extras and its third-party claim against the concrete supplier were dismissed.

Following the dismissal of the applicant's application regarding a failed real estate transaction and the discharge of a Certificate of Pending Litigation, the parties could not agree on costs.

The respondents sought costs of $15,859.77, claiming partial indemnity costs up to the date of their offer to settle and substantial indemnity costs thereafter.

The court reviewed the principles of costs, including proportionality, hourly rates, and travel time.

The court reduced the hourly rate for travel time by 50% but ultimately found the total amount claimed by the respondents to be reasonable and proportional.

The applicant was ordered to pay the respondents' costs fixed at $15,859.77.

The applicant buyer sought a declaration that it had the exclusive right to terminate an Agreement of Purchase and Sale (APS) for a property requiring severance approval.

The respondent sellers had added a mutual termination clause during the sign-back process, which the buyer did not initial but included in subsequent offers.

The court found the APS was a binding contract and interpreted the mutual termination clause objectively, concluding that both parties had the right to terminate the agreement if severance approval was not obtained by the specified deadline.

The buyer's application was dismissed, and the Certificate of Pending Litigation was ordered discharged.

The moving parties sought summary judgment dismissing an action alleging theft, trespass, constitutional violations, and other claims arising from the removal and scrapping of vehicles from the plaintiff’s property by municipal by-law enforcement.

The court held that the municipality and its contractors acted pursuant to an Order to Remedy issued under the Building Code Act after the property failed to comply with municipal by-law standards.

Statutory provisions shielded the municipality and those acting on its behalf from liability for actions reasonably taken to bring the property into compliance.

The court further found that the pleadings failed to disclose viable constitutional, contractual, or tort claims and that no genuine issue required a trial.

Summary judgment was granted dismissing the action against the municipality and one contractor.