Jarvis K. Postnikoff

The applicant, an elected school trustee, sought judicial review of the respondent school board's decision finding she breached its Code of Conduct and imposing sanctions.

The board alleged a conflict of interest after a parent committee hired the applicant's husband for a presentation.

An independent investigator concluded there was no breach, but the board rejected this finding without providing reasons.

The Divisional Court found the board's decision unreasonable, as it was unsupported by the record and lacked justification.

The board's decisions on the breach and sanctions were quashed.

The respondent and intervenor sought full indemnity costs of $43,706.71 following their success on an appeal brought by the appellant condominium corporation.

They argued that section 134(3) of the Condominium Act and the condominium declaration entitled them to full indemnity costs.

The Divisional Court dismissed the request, finding that section 134(3) applies to applications, not statutory appeals, and the declaration's indemnification provisions did not apply to an appeal of a tribunal decision.

Costs were fixed at the previously agreed partial indemnity amount of $17,500.

The appellant condominium corporation appealed a Condominium Authority Tribunal (CAT) decision dismissing its application to remove a second dog from the respondent's unit.

The CAT found that the respondent's partner required the service dog as an accommodation for a disability under the Human Rights Code, and awarded $15,000 in damages for discriminatory treatment.

On appeal, the Divisional Court held that the CAT did not err in law in its accommodation framework and did not breach procedural fairness in awarding damages or a common expense credit.

The appeal was dismissed.

The moving parties brought a motion for leave to bring an application for judicial review of an adjudicator's decision dated February 28, 2024.

The Divisional Court dismissed the motion and awarded costs to the responding party fixed at $5,000 all-inclusive.

The appellants appealed a trial judgment that found a beneficial interest of 26% in a house for a deceased's estate, based on a purchase money resulting trust.

The appeal addressed whether the trial judge erred in applying the legal requirements for a resulting trust, particularly the "acted as a purchaser" requirement and the onus of proof regarding loans versus gifts.

It also considered the application of the corroboration requirement under s. 13 of the Evidence Act.

The Court of Appeal clarified that the presumption of resulting trust places the onus on the title holder to rebut it by proving the money was a loan or gift, and that the "acted as a purchaser" requirement applies only at the time of advancement.

The court found no reversible error in the trial judge's findings on the resulting trust or the application of s. 13, as the trial judge rejected the loan evidence on credibility grounds.

The appeal was dismissed.

The applicants sought a declaration of a prescriptive easement or an ancillary right to park on a private road (Hunters Road) owned by the respondent, which they used to access their cottages.

The court dismissed the application, finding that the applicants failed to establish the elements for a prescriptive easement, specifically that their use was "peaceful" and "uninterrupted" for the requisite 20-year period due to the respondent's consistent objections.

Furthermore, the court found that parking on Hunters Road was not "reasonably necessary" for the enjoyment of their properties, as their respective title documents provided for alternative parking solutions.

The defendants brought a motion to set aside a default judgment for possession of their property, which was granted to the plaintiff due to mortgage default.

The court dismissed the defendants' motion, finding they failed to provide a plausible excuse for the default, were properly served, and did not demonstrate an arguable defence on the merits.

The court also rejected the argument that the judgment was an improper 'partial default judgment' and concluded that the balance of prejudice favored the plaintiff, as the defendants continued to occupy the property without payments while the plaintiff incurred expenses.

The plaintiff, Solina Bradshaw, sought elevated costs from the defendant, Jack Hougassian, following a successful judgment in an estate matter.

Jack Hougassian sought costs, arguing divided success, and Sona Shea, self-represented, also sought costs.

The court awarded the plaintiff $125,000.00 in all-inclusive costs from Jack Hougassian, finding the plaintiff was the successful party and that Jack's conduct warranted an elevated award.

The court dismissed Jack's and Sona's claims for costs, noting Sona did not meet the criteria for self-represented litigant costs.

The plaintiff, acting as estate trustee for her deceased mother, brought an action against her brother claiming the mother's estate had a beneficial interest in a property registered solely in the brother's name.

The mother had contributed $10,000 to the down payment when the property was purchased in 1980, and lived there until her death in 2018.

The court found that the brother failed to rebut the presumption of a purchase money resulting trust regarding the $10,000 contribution.

The court awarded the estate a 26% beneficial interest in the net sale proceeds of the property, amounting to $115,900.44, plus $10,000 in damages for the brother's improper disposal of the mother's personal property.

Claims of fraud and breach of fiduciary duty were dismissed, and the action was found not to be statute-barred.

The plaintiffs sought summary judgment against the defendants for breach of an agreement of purchase and sale of residential property.

The defendants admitted liability, with the dispute centering on the assessment of damages and the plaintiffs' duty to mitigate.

The court granted summary judgment, finding that the plaintiffs took reasonable steps to mitigate their loss by promptly re-listing and selling the property, and that the resale price was a valid measure of market value.

The court awarded damages for the difference between the original contract price and the resale price, plus approved ancillary expenses, crediting the deposit against the total judgment.

The appellant appealed a motion judge's decision allowing a breach of trust claim to be joined with a construction lien claim under the amended Construction Act.

The Divisional Court allowed the appeal, holding that while the Act itself is silent on joinder, O. Reg. 302/18 expressly permits only the joinder of breach of contract or subcontract claims.

By implication, the regulation precludes the joinder of trust claims in a construction lien proceeding.

The order permitting joinder was set aside and the trust claims were struck.

The defendant contractor in a construction lien action brought a motion for security for costs against the corporate plaintiff.

The court first granted leave to bring the motion under s. 67(2) of the Construction Lien Act, finding it necessary to 'even the playing field' as the plaintiff lacked sufficient assets in Ontario.

Applying the framework for security for costs, the court found the plaintiff failed to provide full financial disclosure to establish impecuniosity and failed to demonstrate a good chance of success on the merits.

The motion was granted, and the plaintiff was ordered to post security for costs in installments totaling $77,500.

The applicant brought a motion to remove counsel representing both the individual respondent and the corporate respondent in an oppression application.

The applicant argued that counsel had a conflict of interest in jointly representing both respondents and that counsel might be called as a witness.

The court found no basis to remove counsel on the grounds of being a potential witness.

However, the court held that a conflict of interest existed because the interests of the individual respondent and the corporate respondent were not aligned in the context of a shareholder dispute.

The motion was allowed in part, and counsel was disqualified from acting for the corporate respondent.

The moving parties brought a motion for leave to appeal an order dated February 28, 2022.

The Divisional Court granted the motion for leave to appeal, with costs of $5,000 payable in the discretion of the appeal panel, and directed the parties to agree upon a schedule for the exchange of appeal materials.

The plaintiff, SRK Woodworking Inc., brought a motion to amend its pleadings to add new parties (officers and directors of the defendant, Devlan Construction Ltd.) and to join a breach of trust claim with its existing construction lien action.

The court examined the transitional provisions of the Construction Act and the impact of the repeal of the former prohibition on joining trust claims with lien claims, as well as the re-location of the permissive joinder of breach of contract claims to a regulation.

The court found that the prompt payment and adjudication schemes of the new Act did not apply to this case, and therefore, there was no reason to prohibit the joinder of trust and lien claims.

The motion to add the new defendants and amend the Statement of Claim was granted.

The plaintiffs brought a motion to remove the defendant's lawyer of record, alleging a conflict of interest based on the lawyer's prior involvement in related litigation.

The court found that the lawyer had never met or received confidential information from the moving plaintiff, and that the motion was brought for tactical reasons.

Applying the bright line rule from McKercher, the court concluded there was no conflict of interest and dismissed the motion.

The applicant sought a prescriptive easement over a sand path on the respondents' land to access the beach from his cottage.

The respondents opposed, arguing the easement was not reasonably necessary and that their predecessors in title were unaware of the path's use.

The court found that the path was reasonably necessary for the better enjoyment of the cottage property and that the applicant had proven 20 years of continuous, open, and uninterrupted use.

The motion for a prescriptive easement was granted.

The appellant appealed a motion judge's order approving the forms of release proposed by the respondents to finalize an estate settlement.

The parties had previously reached a settlement agreement regarding the distribution of the estate, but could not agree on the terms of the releases.

The Divisional Court dismissed the appeal, finding that the motion judge made no palpable and overriding errors and correctly applied the principle that settlement implies a promise to furnish a release.

The court also denied leave to appeal the costs order, noting it was made on consent, and awarded the respondents $5,000 in costs for the appeal.

A case management conference was held to schedule an appeal and determine the mode of hearing during the COVID-19 pandemic.

The court directed that the appeal proceed by teleconference due to the appellant's lack of reliable internet for a videoconference, subject to the appellant's right to request an alternative mode.

The court also provided detailed directions for the electronic filing of appeal materials.

The plaintiffs, a renovation company and its owner, sued the defendant homeowner for an unpaid balance on a renovation contract.

The initial fixed-price contract was later superseded by an oral agreement during a November 2017 meeting due to project delays and disputes.

The court found the plaintiffs' initial estimate and project management lacked diligence, and their claims for extra work were largely unsubstantiated.

However, the court determined that a new oral agreement was reached for a total contract price of $90,000.00, inclusive of labour, material, and HST.

The defendant had paid $65,129.60.

Judgment was awarded to the plaintiff Kyle O’Brien for the remaining balance.