Roger A. Gosbee

The defendants brought a motion to declare the plaintiff's construction lien expired and to vacate it, arguing it was not preserved in time and the statement of claim was not served within the 90-day statutory period.

The court found the lien was preserved in time based on the actual date of contract termination.

Regarding the late service of the statement of claim, the plaintiff's counsel admitted to a six-month delay, citing oversight and the impact of the COVID-19 pandemic.

The court adjourned the motion to allow the plaintiff to bring a cross-motion for an extension of time for service, requiring more evidence on the pandemic's effect on the delay.

The plaintiff sought a constructive trust over the deceased's home and vehicle, claiming unjust enrichment arising from their common law relationship and joint family venture.

The court found that while the parties were in a joint family venture and the deceased was enriched by the plaintiff's contributions to the property and caregiving for his family, the plaintiff had been adequately compensated.

She received approximately $250,000 through beneficiary designations upon his death and had exclusive use of the home and vehicle for over two years.

The plaintiff's claim was dismissed, and the estate's counterclaim for possession of the home and vehicle was granted, though occupation rent was denied.

The appellant purchased a commercial property from the respondents and gave a vendor take back mortgage.

The respondents remained as tenants.

The appellant sued in Small Claims Court for unpaid rent and property removal costs, while the respondents counterclaimed.

During the trial, the respondents' counsel withdrew, and the Deputy Judge ordered the appellant to pay the outstanding mortgage balance of $59,235.31 into court to obtain a discharge and avoid prejudice from the delay.

The Deputy Judge ultimately awarded the appellant $25,000 plus costs, but ordered the remaining funds in court paid to the respondents, failing to account for agreed-upon rent set-offs that were not formally pleaded.

On appeal, the Divisional Court held that while the Deputy Judge exceeded Small Claims jurisdiction by ordering the $59,235.31 payment, the Superior Court had jurisdiction under s. 134(1) of the Courts of Justice Act to correct the unintended consequences.

The appeal was allowed, and judgment was granted to the appellant for $53,505 plus costs, to be paid from the funds in court.

The defendants brought a motion to set aside a default judgment obtained by the plaintiff in 2010 regarding a failed immigration consulting contract.

The defendants argued they were not properly served and that the claim was not a liquidated demand.

The court found that service was properly effected pursuant to a substituted service order and that the claim for a refund of the contract price was a liquidated demand.

Applying the test to set aside a default judgment, the court held that the defendants failed to move promptly after learning of the judgment and that the plaintiff would suffer significant prejudice due to the death of key witnesses.

The motion was dismissed.

The appellant appealed an order refusing to dismiss a small claims action as an abuse of process.

The Court of Appeal held that while it would have been procedurally preferable for the respondent to move to transfer the action to the Superior Court, the motion judge was entitled to refuse to dismiss the action.

The Court found that dismissing the claim would be disproportionate to the procedural irregularity that occurred, and dismissed the appeal.

The appellants appealed a Small Claims Court judgment ordering them to pay damages for a defectively installed engineered hardwood floor.

The floor buckled because it was glued at the edges without T-moldings, contrary to standard practice, though the respondent had insisted on this installation method.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Deputy Justice's conclusions that the appellants bore the contractual risk, that the Consumer Protection Act applied, and that the individual appellant was personally liable under the contract.

The moving party sought to strike the plaintiff’s Superior Court action as an abuse of process, arguing that the plaintiff’s earlier Small Claims Court proceeding—later dismissed as abandoned—barred the new action.

The court held that the Small Claims Court dismissal was administrative and not a determination on the merits.

The endorsement from the settlement conference did not constitute a binding order requiring transfer to the Superior Court, and the defendant had not demonstrated prejudice.

Applying the flexible abuse of process doctrine, the court concluded that allowing the claim to proceed would not undermine the administration of justice.

The plaintiff mortgagee brought a motion seeking payment out of court of funds deposited by the defendant after redeeming a replacement vendor take‑back mortgage in foreclosure proceedings.

The defendants asserted an equitable set‑off defence alleging negligent fill operations, excess fill, and contamination affecting the property.

The court found the allegations unsupported by evidence and noted the mortgage required payment without deduction or abatement.

The defendants failed to particularize or substantiate the set‑off claim and did not demonstrate prejudice warranting a stay of payment.

The court ordered the funds paid out to the plaintiff while leaving the equitable set‑off issue to be determined separately.

The appellant landlord appealed a decision finding that a requirement to maintain eight doctors as tenants and a corresponding rent abatement provision in a 1990 commercial lease were not eliminated by a subsequent renewal agreement.

The Court of Appeal dismissed the appeal, finding no error in the application judge's interpretation of the commercial context and language of the agreements.

Applying Sattva, the Court held that deference was owed to the application judge's interpretation.

The plaintiff brought a motion for an interlocutory injunction to restrain the defendants from interfering with its operation of a go-kart business pending trial.

The parties had entered into a Management Agreement, which the defendants purported to terminate by changing the locks, alleging breaches by the plaintiff.

The court applied the RJR-MacDonald test and found that there was a serious issue to be tried regarding the validity of the termination, that the plaintiff would suffer irreparable harm if put out of business, and that the balance of convenience favoured the plaintiff.

The injunction was granted subject to several conditions, including the timely payment of amounts due under the agreement.

The appellant appealed an order striking her Statement of Claim for failing to disclose a reasonable cause of action against the Crown.

The appellant argued the claim could be read as pleading negligent investigation.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the words 'negligent investigation' did not appear and no supporting facts were pleaded.

In a supplementary endorsement, the Court of Appeal clarified its previous order regarding a commercial lease dispute.

The Court confirmed that the trial of the issue was ordered only on Part 4 of section 444.1(1) of the Municipal Act, as the offer to lease entered into before June 11, 1998, satisfied Part 1 of the section.