Jack Copelovici

This decision addresses costs following an application for partition and sale of a jointly owned property and a subsequent accounting reference.

The applicant sought partial indemnity costs for both the application and the reference.

The respondent sought substantial indemnity costs for a portion of the reference, citing an offer to settle.

The court found the applicant successful on the initial application and the respondent successful on the reference hearing.

Applying principles from the Courts of Justice Act and Rules of Civil Procedure, and considering the mixed success and similar overall partial indemnity fees, the court ordered each party to bear their own costs.

The applicant and respondent, mother and son, disputed the accounting of net proceeds from the sale of a jointly owned condominium.

The respondent had lived in the property rent-free for 20 years and claimed sole beneficial ownership, as well as credits for sweat equity and management fees.

The court found the property was owned 50/50 and denied the respondent's claims for sweat equity and management fees.

The court also denied the applicant's claim for occupation rent, finding the presumption was rebutted by the family's intention for the respondent to live rent-free and the lack of prior notice for the claim.

The court-appointed Manager moved for approval of its fees, its counsel's fees, and a proposed Fee Allocation Methodology to distribute the costs among various properties in a complex real estate receivership.

Several mortgagees and lien claimants opposed the fee approval and the allocation methodology, arguing that time was not docketed on a property-by-property basis and that the methodology was unfair.

The court approved the fees and the methodology, finding that strict property-by-property accounting would be cost-prohibitive and that the proposed allocation was fair and equitable.

The court also rejected arguments that the Manager's charge should be subordinated to prior liens or subject to the doctrine of marshalling.

The appellant appealed a master's order granting the respondent leave to maintain an action commenced while its business-name registration had lapsed and while there were alleged filing defaults under corporate disclosure legislation.

The court held the proceeding was not a nullity ab initio and that the saving provisions in the Business Names Act and Corporations Information Act were available.

Applying the statutory three-part tests, the court found sufficient evidence that the non-compliance was inadvertent, that the public had not been deceived or misled, and that the respondent was compliant at the time of the motion.

The appeal and the challenge to the $10,000 costs award were dismissed.

The plaintiff sought leave to maintain an action and amend its statement of claim after commencing proceedings while non-compliant with registration requirements under the Business Names Act and the Corporations Information Act.

The defendant moved to dismiss or permanently stay the action on the basis that the expired business name registration rendered the action a nullity.

The court held that proceedings commenced while non-compliant are not necessarily nullities and may continue if leave is granted under the statutes.

Applying a “gentle” interpretation of the legislation and finding that the non-compliance had been rectified and caused no prejudice or deception, the court exercised its discretion to grant leave and permit amendment of the claim.

The defendant’s motion to dismiss or stay the action was refused.

The court heard a reference for an accounting of monies owing, contributions made, and ownership holdings regarding multiple real estate properties owned by a partnership.

The court found that the managing partner breached his obligations by moving to Korea and delegating his duties, and disallowed his claims for management fees, travel expenses, and delegated work.

The court also found that the investing partner breached the agreement by unilaterally selling properties and retaining the proceeds, ordering him to repay the funds to the partnership.

Due to disorganized financial records, the court provided specific directions on allowable expenses and ordered the parties to prepare standardized itemized lists for a resumed hearing if they could not agree on the final accounting.

The appellant condominium corporation appealed a judgment finding that an easement had been created by proprietary estoppel.

The Court of Appeal dismissed the appeal, finding an evidentiary basis that all conditions for proprietary estoppel, including unconscionability, were met based on the course of dealings with the respondent's predecessor in title.

The Court also held that s. 50(14) of the Planning Act provided a complete answer to the appellant's arguments regarding subdivision control.

The appeal was dismissed with costs fixed at $10,000.

The appellant appealed a trial judgment upholding the validity of his deceased brother's will, which left the estate to the respondent, the testator's common law partner.

The appellant challenged the due execution of the will, the admissibility of hearsay evidence from a police officer regarding the testator's statements, an award of $10,000 in damages for trespass and conversion, and the denial of his costs out of the estate.

The Court of Appeal dismissed the appeal, finding ample evidence of proper execution, that the hearsay evidence met the necessity criterion, and no basis to interfere with the damages or costs awards.

The appellant appealed a finding of liability under the Sale of Goods Act and the dismissal of its counterclaim regarding a defective machine.

The respondent cross-appealed the damages award, seeking compensation for lost business.

The Court of Appeal upheld the liability finding, noting the trial judge made no palpable and overriding error in determining the machine was not reasonably fit for its purpose.

However, the Court reduced the damages awarded for lost time during service calls to prevent overcompensation and allowed a portion of the counterclaim for moving expenses.

The cross-appeal for loss of business was dismissed as the claims were too speculative.

The appellants, a mother and son, were convicted of assaulting the mother's nine-year-old daughter.

They appealed their convictions and sentences, arguing that the trial judge's conduct and comments during the trial created a reasonable apprehension of bias.

The Court of Appeal agreed, finding that the trial judge made improper favourable comments about Crown witnesses and improper negative comments about defence witnesses, including criticizing an accused for using an interpreter.

The appeals were allowed and a new trial was ordered.