Mark Abradjian

The decision addresses an application by Warren Michael Cummings seeking various forms of relief against the Mayor, Councillors, Chief Administrative Officer, and the Corporation of the County of Norfolk.

The court considered requests for review of a Municipal Election Compliance Audit Committee decision, the conduct of council in passing a by-law, the appointment of an auditor or investigator, and the right of residents to challenge legal bills.

The court found that Mr. Cummings lacked standing for the relief sought, that the requests were frivolous, and summarily dismissed the application under Rule 2.1.01 of the Rules of Civil Procedure.

Following a trial where the defendants were found liable in nuisance and negligence for flooding the plaintiff's lands, the parties disagreed on the calculation of prejudgment interest (PJI).

The plaintiff sought PJI based on the Canadian bank prime rate compounded annually, while the defendant argued for the statutory rate under s. 128 of the Courts of Justice Act.

The court exercised its discretion under s. 130 of the Act to award compound interest at the prime rate, finding that the statutory rate would under-compensate the plaintiff and provide an unwarranted financial windfall to the defendants who had avoided maintenance costs for decades.

The plaintiff, National Steel Car Limited, brought an action against the City of Hamilton, ArcelorMittal Dofasco Inc., and the Hamilton Port Authority for damages caused by reoccurring flooding to its property from the Kenilworth Avenue Drainage Channel.

The court found the City and AMD liable in nuisance, negligence, and strict liability under the rule in Rylands v. Fletcher for failing to maintain the channel and altering its flow, which caused substantial and unreasonable interference with the plaintiff's property.

The action against the Hamilton Port Authority was dismissed.

The court awarded the plaintiff over $5.2 million in compensatory damages, granted a permanent mandatory injunction requiring the City and AMD to remediate and maintain the channel, and awarded punitive damages of $500,000 against AMD and $400,000 against the City.

This endorsement addresses costs for two motions: John James's motion to remove Lory James as Estate Trustee and appoint an Estate Trustee During Litigation (ETDL), and Lory James and Glacier Trading Corporation's motion to strike John's counterclaim.

The court previously granted the appointment of an ETDL and dismissed the motion to strike the counterclaim.

The court determined that costs should be fixed immediately rather than reserved for trial, emphasizing the "loser pays" principle in estate litigation.

John James was deemed the overall successful party on his motion, and entirely successful on the motion to strike.

The court awarded John James $10,000 in costs against Lory James personally for his motion, and $5,500 jointly and severally against Lory James and Glacier Trading Corporation for their unsuccessful motion to strike.

The plaintiff purchased property from the defendant church to build social housing.

Prior to the sale, the church retained the defendant environmental consultant to conduct a Phase I Environmental Site Assessment.

The consultant's report, which contained a standard disclaimer clause limiting liability to third parties, was provided to the plaintiff by the church without the consultant's knowledge or consent.

After closing, the plaintiff discovered soil contamination and sued the church and the consultant for negligent misrepresentation.

The consultant moved for summary judgment.

The court granted the motion, finding that the disclaimer clause effectively excluded any duty of care owed to the plaintiff, and dismissed the action and crossclaims against the consultant.

A homeowner appealed a lower court decision that upheld a greenhouse operator's use of storing and grinding wood on-site as an accessory use under the local zoning bylaw.

The homeowner sought a declaration that the wood storage and grinding operations violated the zoning bylaw.

The Court of Appeal upheld the lower court's decision, finding that storing and grinding wood for heating greenhouses constitutes a natural and normal incident of operating a greenhouse and therefore qualifies as an accessory use under the bylaw definition.

The court rejected the homeowner's argument that a restrictive interpretation of "naturally and normally incidental" was required.

The appellant contractor appealed a summary judgment dismissing its claims against an insurer and an independent adjuster for unpaid repair work following a fire.

The appellant argued the motion judge erred in finding no contract existed with the insurer or adjuster, and in dismissing its unjust enrichment claims.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the written contract was solely with the property owner and that the insurer and adjuster received no real benefit from the work.

Leave to appeal the substantial indemnity costs order was also denied.

Following the dismissal of the applicant's application to direct the registration of a tax deed, the successful responding parties sought partial indemnity costs.

The applicant argued that the costs awarded should be limited to the amount of its own legal costs in bringing the application, relying on the principle that the unsuccessful party's costs can indicate the parties' expectations.

The court rejected this argument, noting that the application posed a significant financial risk to the responding parties, justifying their higher costs.

The court fixed costs at $22,000 for the municipality and $11,000 for the mortgagee.

The applicant, 2494044 Ontario Inc., sought an order directing Norfolk County to register a tax deed for a commercial property after being the highest tenderer in a tax sale.

The County cancelled the tax sale after the previous mortgagee paid the outstanding taxes.

The court found that the County Treasurer acted reasonably in exercising discretion under section 382(6)(a) of the Municipal Act to cancel the tax sale, as it was not in the municipality's financial interest to continue.

The application was dismissed, affirming the Treasurer's decision.

The appellant appealed a decision of the Acting Drainage Referee denying him standing under the Drainage Act to appeal a drainage works report.

The appellant argued he had standing as the spouse of the registered owner of the affected property and as a resident who paid bills.

The Divisional Court upheld the Referee's decision, finding it reasonable that the Family Law Act did not confer an ownership interest for the purposes of the Drainage Act, and that residing in the home did not make the appellant an 'owner'.

The court also dismissed arguments related to the Protection of Public Participation Act and a request for a stay, ultimately dismissing the appeal and awarding costs to the respondents.

Hamilton Cab Company Inc. and John Dean sought summary judgment against Jaspal Gill and related numbered companies concerning outstanding debt, mortgage enforcement, and a counterclaim for professional negligence.

The court granted Hamilton Cab's motion for possession of mortgaged properties and partial summary judgment for $470,487.62, with additional debt to be determined on a reference.

The court dismissed the Gill defendants' counterclaim against John Dean, finding no genuine issue for trial regarding the validity of the agreements or the solicitor's standard of care.

The appellant appealed a summary judgment decision dismissing her claims against the respondents.

The central issue was whether the appellant was the sole or majority shareholder of John Bordynuik Inc. of Delaware and therefore entitled to bring claims on behalf of or as an assignee of that company.

The motion judge found that the respondent John Bordynuik was not obliged to give up his shares in the Delaware Company when he purchased his majority interest in JBI Inc. of Nevada.

The Court of Appeal upheld the motion judge's findings, accepting her interpretation of the documentary evidence, including an email and share ledger, over the appellant's interpretation of a Settlement Agreement.

The appeal was dismissed with costs fixed at $25,000 inclusive of disbursements and applicable taxes.

The appellant sought to appeal several interlocutory orders made by an Acting Referee under the Drainage Act, including an order dismissing a recusal motion.

The Divisional Court dismissed the appeal on multiple grounds.

First, the appellant lacked standing as he was not the registered owner of the property.

Second, the orders appealed from were interlocutory and therefore final and not subject to appeal under section 106(3) of the Drainage Act.

Finally, the court found no unfairness in the Acting Referee hearing his own recusal motion, as this accords with usual practice.

The applicants sought substantial indemnity costs or, alternatively, partial indemnity costs after successfully obtaining an injunction to shut down a police firing range.

The respondent had offered to cease activity without costs, which the applicants rejected due to wanting costs and environmental clean-up.

The court dismissed the claim for substantial indemnity costs, finding no reprehensible conduct by the respondent.

However, the court found the applicants' partial indemnity claim of $60,237.93 to be reasonable given the complexity and importance of the case, and ordered the respondent to pay this amount.

The applicants sought declarations and an injunction against Norfolk County regarding a police firing range on county land.

The court found that the firing range was not lawfully established before August 5, 1986, and thus was not a permitted or legal non-conforming use under subsequent bylaws.

Furthermore, even if it had been initially lawful, its significant intensification over the years, including expanded hours, increased lanes, and stray bullets on adjacent property, constituted a "difference in kind" in its community impact, thereby losing any potential acquired rights.

The court dismissed the respondent's defence of laches, finding the community's delayed complaints reasonable given the initial limited use and subsequent dramatic intensification and safety concerns.

An order was issued declaring the facility unlawful and granting a permanent injunction.

The respondent perfected a construction lien and set the action down for trial within the two-year limitation period under s. 37(1) of the Construction Lien Act.

However, the respondent failed to file a defence to the appellant's counterclaim before setting the action down, contrary to Rule 48.01 of the Rules of Civil Procedure.

The appellant moved to discharge the lien, arguing the setting down was a nullity.

The Court of Appeal held that setting the action down while pleadings were open was a procedural irregularity curable by Rule 2.01.

Curing the irregularity did not have the effect of extending the strict two-year limitation period, as the action was factually set down within the required timeframe.

The defendant appealed a summary judgment decision dismissing its third-party claim for contribution and indemnity against a geotechnical consultant.

The motion judge had dismissed the claim after finding that the plaintiff's counsel made admissions during the hearing that the plaintiff had no claim against the consultant.

The Court of Appeal allowed the appeal, finding that the motion judge made a palpable and overriding error because counsel's statements were qualified and did not constitute a binding admission that no claim existed.

The dismissal of the third and fourth party claims was set aside.

Following a successful summary judgment motion dismissing a third party claim and the consequential dismissal of a fourth party claim, the court addressed costs.

The third party sought costs from the defendant and indemnification for any costs owing to the fourth party.

The court held that the plaintiff’s limited involvement did not justify awarding or requiring costs at this stage and deferred any cost consequences between the plaintiff and defendant to the trial of the main action.

However, the court determined that the third and fourth parties should not wait until the conclusion of the main action to recover their costs.

The defendant was ordered to pay the third and fourth parties’ costs on a partial indemnity basis, with amounts fixed by the court for fairness and proportionality.

A third party engineering consultant brought a motion for summary judgment dismissing a contribution and indemnity claim brought by the defendant in a construction dispute.

The plaintiff contractor alleged extra costs after encountering subsurface conditions different from those described in a geotechnical evaluation prepared by the third party.

The court held that contribution and indemnity under the Negligence Act requires that the third party be directly liable to the plaintiff.

Given the plaintiff’s admissions that it did not challenge the third party’s bore hole testing or interpretation and had no information about offshore subsurface conditions, no cause of action existed against the third party.

The third party claim and the related fourth party claim were dismissed.

Following the setting aside of an ex parte Mareva injunction previously granted in favour of the plaintiff, the defendant sought costs.

The court considered whether substantial indemnity costs were appropriate due to alleged nondisclosure in obtaining the injunction.

While the court acknowledged concerns about incomplete disclosure, it concluded the conduct did not rise to the level of reprehensible or egregious behaviour required to justify substantial indemnity costs.

Applying Rule 57.01 of the Rules of Civil Procedure and relevant jurisprudence, the court awarded partial indemnity costs to the defendant.

Costs were fixed at $28,000 plus HST and disbursements, payable in any event of the cause following trial or other disposition.