Mark Abradjian

The Tribunal held a telephone conference call to set procedural directions and hearing dates for appeals of a Director's Order issued under the Environmental Protection Act regarding the unauthorized storage of hazardous waste materials at a site in Hamilton.

The Tribunal ordered a schedule for the exchange of witness statements and documents, and set hearing dates for December 2015 and March 2016.

The Norfolk County Roads Department appealed the Engineer's report for the Decou Road Drain, arguing that the assessments for benefit and outlet liability for Branch B were disproportionately levied against the municipality.

The Engineer had assessed 100% of the remaining capital costs and future maintenance costs for Branch B against Norfolk County, while assessing other affected properties at zero dollars.

The Tribunal found that the construction of Branch B offered significant benefit to other directly affected properties and that the assessment of capital and maintenance costs solely against the municipality was inequitable.

The Tribunal ordered the report referred back to the Engineer to revise the Schedule of Assessment for Branch B to include appropriate assessments for benefit and outlet liability against all affected lands.

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.

The defendant moved to set aside an ex parte Mareva injunction that had frozen his assets pending trial.

The court held that the plaintiff failed to make full and frank disclosure of material facts when obtaining the injunction, including the existence of a prior written settlement agreement that could be dispositive of the claim and other misleading statements regarding the defendant’s financial circumstances.

Applying the principles governing Mareva injunctions and Rule 39.01(6) of the Rules of Civil Procedure, the court found the nondisclosure sufficient to rescind the order.

The court also declined to grant a fresh injunction, finding the plaintiff had not established a prima facie case or a genuine risk of dissipation of assets.

The defendant’s motion was granted and the plaintiff’s motion to continue the injunction was dismissed.

The appellant appealed a decision interpreting a varied trust deed.

The trust had been converted into a percentage trust (unitrust) to allow the trustee to invest for maximum returns.

Due to market downturns, the trustee had to sell capital assets to meet the mandatory minimum percentage distributions to the income beneficiaries, depleting the trust's capital.

The application judge found that the trust deed's terms made the percentage payments mandatory and ousted the trustee's duty to maintain an even hand between income and capital beneficiaries regarding distributions.

The Court of Appeal dismissed the appeal, holding that the application judge correctly interpreted the trust deed based on its clear language and the surrounding factual matrix, including the prior court approval and tax rulings.

The testator left a life interest in the residue of his estate to his wife, directing that upon her death, the residue be divided equally between his son and daughter, 'per stirpes'.

The son predeceased the life tenant, leaving his estate to his second wife.

The application judge held that the phrase 'per stirpes' indicated an intention to benefit the son's children, rather than his estate or the surviving daughter.

The Court of Appeal dismissed the appeal, finding that while a gift to named children 'per stirpes' can be contradictory, in this context it conveyed the testator's intention to benefit his children's children if either child predeceased the life tenant.

The appellant appealed the dismissal of her application for declaratory and injunctive relief regarding alleged zoning and sign by-law infractions by the respondents' moving business.

The respondents operated their business from a property zoned for agricultural use, claiming it was a permitted 'home occupation'.

The Court of Appeal upheld the application judge's finding that the business activities, which were largely conducted off-site, did not contravene the zoning by-law.

The court also found no sign by-law infraction, as the municipality had granted exceptions.

The appeal was dismissed with costs.

The appellants appealed a trial judgment regarding a dispute over a share of winnings.

The Court of Appeal dismissed the appeal, finding that the trial judge's factual conclusions, particularly regarding a conversation at a restaurant, were supported by the evidence and based on unassailable credibility findings.

Costs of $10,000 were awarded to the respondent.

The appellants appealed a decision regarding the validity of a Township fence bylaw, arguing it conflicted with the Region's zoning bylaw and therefore could not restrain the height of their fence.

The Court of Appeal found no conflict, noting the lands were zoned 'lakeshore' rather than 'residential', and the zoning bylaw's provisions on accessory uses explicitly excluded boundary fences.

The appeal was dismissed with costs awarded to the respondents.

The appellants appealed a summary judgment order granting possession of their property to the respondent.

The Court of Appeal dismissed the appeal, finding no merit in the appellants' arguments regarding corroborating evidence and equitable estoppel, and upheld the motion judge's reasons.

The appellant husband appealed a decision dismissing his application to reduce spousal support following his early retirement.

The husband argued the applications judge failed to apply the rule against double-dipping from Boston v. Boston and misapprehended the evidence regarding his income.

The Court of Appeal found that while the rule against double-dipping did not apply because the support was largely based on need, the applications judge did misapprehend the evidence regarding the husband's post-retirement income and expenses.

The appeal was allowed, and spousal support was reduced from $1,800 to $1,200 per month, indexed to the cost of living.