Don Morris

The defendant brought a motion for summary judgment to dismiss the plaintiff's claim.

The plaintiff alleged that she and her late husband gave the proceeds from the sale of two properties to the defendants in trust, and that these funds were used to purchase a condominium to be held in trust for the plaintiff.

The defendant argued the funds were legitimate payouts for discharged mortgages.

The court found no genuine issue requiring a trial, concluding the documentary evidence supported the defendant's position that the funds were mortgage payouts, not trust funds.

The court rejected the plaintiff's assertion that the mortgages were shams designed to avoid creditors.

The motion for summary judgment was granted and the action dismissed.

The plaintiff's motion to preserve funds under Rule 45.02 was dismissed, and the successful defendant sought costs on a substantial indemnity basis.

The defendant had delivered a Rule 49 offer to settle prior to the motion.

The court found the defendant was entitled to substantial indemnity costs but reduced the claimed hours by 50% as they were excessive and duplicative of preparation for a prior summary judgment motion.

Costs were fixed at $6,200 for fees and $500 for disbursements, plus HST.

A neighbour who provided assistance to an elderly woman for nearly 15 years sought to enforce a $100,000 cheque given to him by the woman shortly before her death.

The woman had also made a bequest of $100,000 to the neighbour in her will.

The cheque was returned by the bank due to insufficient funds in the account, and the woman died before the shortfall could be remedied.

The court held that a gift by cheque is not complete until the cheque is cashed or has cleared.

Since the woman lacked sufficient funds in her account and died before the cheque could be presented for payment, the gift failed for lack of delivery.

The court also rejected arguments based on the Bills of Exchange Act, estoppel by convention, and equitable principles.

The applicant sought to enforce payment of a $100,000 cheque received as an inter vivos gift from the deceased shortly before her death.

The deceased mistakenly believed she had sufficient funds to cover the cheque, which subsequently could not be cashed due to a shortfall in her account.

The court dismissed the application, holding that a gift by cheque is not complete until it clears, and a sufficient act of delivery did not occur as the donor lacked the funds.

The equitable doctrine of estoppel by convention was also found inapplicable as the applicant did not change his legal position in reliance on the shared mistaken assumption.

On a rule 21.01 pleadings appeal, estates alleged that a problem gambler stole estate funds and lost substantial sums at casinos operated by the respondent.

The majority held it was not plain and obvious that the claims in knowing receipt, unjust enrichment, and negligence were bound to fail, given allegations that the casino knew of the gambler's addiction, knew problem gamblers sometimes steal to fund gambling, and accepted unusually large gambling losses without inquiry.

The court held the motion judge failed to consider whether juristic reasons for enrichment could be vitiated by unconscionability and held Ontario law did not definitively foreclose a duty of care to victims of problem gamblers.

The appeal was allowed, the motion to strike was dismissed, and the action was permitted to proceed.

Following dismissal of a civil action against a casino operator arising from a fraudster gambling stolen funds, the defendant sought partial indemnity costs of the action.

The plaintiffs argued the case raised a novel legal issue and that awarding costs would unfairly compound the losses already suffered through the fraud.

The court considered the access to justice principles discussed in Boucher v. Public Accountants.

In the circumstances, the court exercised its discretion to decline awarding costs.

No costs were ordered despite the defendant’s success in the underlying action.

The defendant casino operator moved under rule 21.01 to strike a claim brought by estate plaintiffs whose funds had been fraudulently obtained and then lost through gambling.

Applying the Anns/Cooper framework, the court held the pleadings did not disclose sufficient proximity to establish a duty of care to problem gamblers, and therefore no derivative duty to the plaintiffs.

The unjust enrichment, conversion, and knowing receipt claims were also untenable because the defendant had valid gambling contracts with the gamblers, was a bona fide purchaser without notice, and had no obligation to investigate the source of patrons' funds.

The action was dismissed without leave to amend.

The appellant appealed a Small Claims Court order staying its action for unpaid fees against the respondent law firm.

The deputy judge had stayed the action pending the approval of the minor client's settlement under Rule 7.08 of the Rules of Civil Procedure in the Superior Court.

The Divisional Court allowed the appeal, finding that Rule 7.08 is designed to protect litigants under a disability, not lawyers, and does not apply to a contract dispute between a service provider and a law firm.

The stay was vacated and the matter remitted to the Small Claims Court for trial.

The appellant was injured in a motor vehicle accident in 2002 but did not commence an action until 2011.

The motions judge granted summary judgment dismissing the action as statute-barred, finding that a reasonable person would have investigated the ongoing back pain and discovered the serious and permanent nature of the injury well before 2009.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motions judge's conclusion on discoverability and noting the appellant adduced no evidence of individual characteristics that would have prevented her from discovering the claim earlier.

The appellants appealed a trial judgment awarding damages for destroying trees and altering a watercourse on the respondents' adjacent property.

The Court of Appeal dismissed arguments regarding the sufficiency of the trial judge's reasons and the effect of a release signed by the respondents.

However, the Court agreed that the trial judge erred in calculating the damages.

The appeal was allowed in part to reduce the total damages awarded to $59,930 plus applicable taxes.

The appellants, landlords of a multi-unit commercial property, appealed a decision finding that the respondent tenant was not responsible for the costs of repaving the parking lot.

The appellants argued that repaving fell under the lease terms for 'maintaining and repairing the property'.

The Court of Appeal dismissed the appeal, agreeing with the application judge that repaving was a capital expense rather than maintenance or repair, based on the wording of the lease and the reasonable expectations of the parties.

The moving defendants, a lawyer and law firm acting for a mortgagee in a mortgage enforcement proceeding, brought a motion under Rule 21.01 of the Rules of Civil Procedure to strike portions of the amended statement of claim alleging improper withholding of surplus proceeds following a power of sale.

The plaintiff alleged the lawyers attempted to extort a release by withholding trust funds and sought damages for abuse of process, negligence, and breach of ethical duties.

The court held that opposing counsel owe no duty of care or fiduciary duty to an adverse party and that alleged breaches of professional or ethical duties are owed to the court and the governing law society, not to opposing litigants.

As a result, the claims disclosed no reasonable cause of action and were frivolous and vexatious.

The impugned portions of the claim against the lawyer and law firm were struck.

Following a judgment in favour of the applicant in a commercial lease dispute involving approximately $19,000, the court determined the appropriate costs award.

The applicant sought $14,424.02 in partial indemnity costs based on 39.8 hours of legal work.

Although the court accepted the time spent and hourly rate as reasonable, it considered the proportionality of costs relative to the modest amount in dispute under Rule 57.01 of the Rules of Civil Procedure.

Taking into account the applicant’s settlement efforts and the absence of settlement offers or cost submissions from the respondents, the court exercised discretion to reduce the amount claimed and fixed costs at $12,000 inclusive of fees, disbursements, and HST.

A commercial tenant sought a determination that it was not liable under a net‑net lease for its proportionate share of the cost of completely repaving a parking lot and for the cost of replacing a damaged vehicle door.

The landlord argued the tenant was responsible for common area maintenance and repair expenses.

The court held that full replacement of a 19–20‑year‑old parking lot constituted a capital replacement caused by reasonable wear and tear, not “maintenance” or “repair” contemplated by the lease.

The court also preferred the tenant’s evidence that the door damage pre‑dated the tenancy.

The tenant was therefore not liable for the repaving cost, the door replacement cost, or bailiff fees relating to a dispute about last month’s rent.