Harvey A. Swartz

The appellant appealed a trial decision dismissing his claim to half the proceeds from the sale of a property and granting the respondent's counterclaim based on a resulting trust.

The parties were unmarried, and the trial judge found the appellant had financially exploited the respondent and contributed nothing to the property's purchase or upkeep.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the presumption of resulting trust to the gratuitous transfer of the property interest, and affording deference to her credibility assessments and factual findings.

Following a family law trial where the applicant was largely successful in imputing income to the respondent and obtaining child support, the applicant sought full recovery costs of $43,927.37.

The court found the applicant was the most successful party, though the respondent had some success in capping section 7 expenses for dance.

The court determined the respondent behaved unreasonably by concealing his income, justifying costs on a full indemnity scale.

The court fixed costs at $38,000, payable within three months, and permitted the respondent to pay retroactive child support in 12 monthly installments.

This action concerned a dispute over the proceeds of sale of a residential property between former common-law partners.

The plaintiff, Errol Walters, claimed entitlement to half the proceeds based on registered joint title.

The defendant, Lubna Nusseiri, counter-claimed for a resulting trust, arguing the transfer of half-interest to Walters was gratuitous and that she was the sole beneficial owner.

The court found Walters made no contribution to the property's initial purchase and that the subsequent transfer to him was gratuitous, giving rise to a presumptive resulting trust in Nusseiri's favour.

Walters failed to rebut this presumption.

The court also rejected Walters' constructive trust claim for renovations, finding no unjust enrichment.

This trial addressed the applicant's request for income imputation, ongoing and retroactive child support, and Section 7 expenses.

The court imputed an annual income of $73,000 to the respondent, finding he was intentionally underemployed and that his underemployment was unreasonable.

Consequently, the court awarded ongoing and retroactive guideline child support.

While retroactive Section 7 expenses for the children's dance activities were awarded, the respondent's share was reduced due to the unreasonableness of the high costs not contemplated in the original separation agreement, and future contributions were capped.

The proportionate shares for ongoing Section 7 expenses were also adjusted.

The plaintiff, Frederick Fischer, moved for summary judgment against the vendor and real estate agents involved in his purchase of a property previously used as a marijuana grow operation, a latent defect not disclosed to him.

He alleged fraudulent concealment and misrepresentation.

The court dismissed the motion, finding genuine issues requiring trial, including whether the buyer's agent knew about the grow-op, the source of information provided to the buyer, and the extent of damages suffered by the plaintiff, particularly regarding the property's marketability and mold remediation costs.

The court also granted leave for the plaintiff to amend his claim to explicitly include negligent misrepresentation.

The applicant sought judicial review of a decision by the Ontario Racing Commission refusing his license to work as the Clerk of Scales.

The Tribunal found the applicant accepted cash gifts from jockeys and failed to follow breathalyzer protocols, concluding there were reasonable grounds to believe he would not act with integrity.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding the Tribunal's decision was justifiable, transparent, and intelligible.

The appellant appealed the dismissal of his claim against his title insurer on summary judgment.

The appellant argued that the previous use of his property as a marijuana grow operation rendered the title unmarketable and was covered under the policy.

The Court of Appeal dismissed the appeal, holding that the previous use of the property was a physical defect, not a title defect, and therefore did not render the title unmarketable under the terms of the title insurance policy.

Application arising from a dispute over powers of attorney for property and personal care granted by an elderly individual diagnosed with Alzheimer’s disease.

Competing allegations were made that the son and a friend acting as attorney had each mismanaged the incapable person’s finances, including RRIF withdrawals and the sale of a residence.

The court found significant concerns with the administration of both attorneys and uncertainty regarding the grantor’s capacity when the powers of attorney were executed.

The court appointed the Public Guardian and Trustee as guardian of property in place of the existing attorney and ordered both former attorneys to provide proper accounts for review.

The plaintiff brought a negligence action against a municipality after stepping into a crack or pothole in a municipal parking stall and sustaining a knee injury.

The municipality argued that it met the regulatory minimum maintenance standards for municipal highways and that the roadway was intended primarily for vehicular traffic.

The court held that where a municipality creates designated parking stalls, it is reasonably foreseeable that pedestrians will walk between parked vehicles to access the curb and sidewalk.

The municipality failed to prove it complied with inspection requirements under the Minimum Maintenance Standards for Municipal Highways and failed to inspect the area used by pedestrians.

The longitudinal pothole created an unreasonable risk of harm and the municipality was found liable.

Following a trial involving a dispute over a claimed leasehold interest and alleged obligations to improve leased premises, the plaintiffs’ claim was dismissed and the defendants succeeded on a counterclaim for rent arrears in the amount of $120,000 plus prejudgment interest.

The successful defendants sought recovery of legal costs on a partial indemnity basis.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court assessed the reasonableness of the claimed fees and disbursements.

The court reduced amounts relating to certain research, an unsuccessful motion for possession, and certain disbursements.

Costs were fixed at $33,900 in fees plus $2,681.43 in disbursements inclusive of tax.

A jockey brought a civil action alleging malicious prosecution against racing stewards and the provincial racing regulator after his one‑year suspension for failing to persevere with his mount was overturned on appeal by the regulator.

The defendants moved for summary judgment.

The court held that issue estoppel and abuse of process barred the action because the propriety of the stewards’ investigation and their alleged malice had already been addressed in a full de novo hearing before the regulatory tribunal.

In any event, the plaintiff failed to establish essential elements of the tort of malicious prosecution, including absence of reasonable and probable cause and malice.

Summary judgment was granted dismissing the action.

The plaintiffs alleged they had entered into a four-year lease of rural property to operate a horse boarding and breeding business and claimed the landlords were obliged to repair and complete the barn and related facilities before rent became payable.

They sought damages for lost profits after the property allegedly remained unusable.

The defendants denied any such agreement, asserting that only limited draft leases existed and that the only executed lease concerned the residential portion of the property.

The court found no agreement requiring the defendants to complete repairs and held that the draft leases, which imposed repair obligations on the tenants and contemplated shorter terms, were the best evidence of the parties’ intentions.

The plaintiffs’ claim was dismissed, possession was ordered to the defendant companies, and judgment was granted on the counterclaim for unpaid rent relating to the house lease.

The applicants sought judicial review of a decision by the Ontario Racing Commission that reinstated the original results of a horse race, overturning a prior decision by the track Stewards regarding interference.

The applicants argued they were denied procedural fairness due to lack of notice, alleged a reasonable apprehension of bias, and challenged the tribunal's findings of fact.

The Divisional Court dismissed the applications, finding that actual notice was established, there was no evidence of bias, and the tribunal's factual findings were reasonable and supported by the evidence.