Martin P. Zarnett

Following dismissal of a motion for summary judgment, the defendant sought costs of approximately $18,500 and argued the plaintiff acted unreasonably in bringing the motion.

The court considered Rules 20.06 and 57.01 of the Rules of Civil Procedure and the conduct of the parties regarding whether examinations for discovery should occur before the motion.

The plaintiff had proposed delaying the motion to conduct discoveries, consistent with guidance from appellate authority on summary judgment procedure, but the defendant opposed that approach.

The court held it was unreasonable for the defendant to resist discovery and then seek costs on the basis that the motion was improperly pursued.

Costs of the motion were therefore reserved to the trial judge.

The plaintiff bank brought a motion for summary judgment seeking recovery of a mortgage deficiency following a power of sale and dismissal of the defendant’s counterclaim.

The defendant alleged she had been subjected to undue influence by a third party and that both the bank’s representative and the lawyer acting jointly for the lender and borrower knew of the arrangement and of a prior impersonation fraud involving her identity.

The court found that the record raised serious credibility issues and factual disputes regarding undue influence, potential misrepresentation, and the conduct of the joint solicitor.

Applying the summary judgment principles from Combined Air Mechanical Services Inc. v. Flesch, the court held that a full appreciation of the evidence required a trial.

The motion for summary judgment was therefore dismissed.

The tenant brought a motion to set aside the registrar's dismissal of his appeal, extend the time to perfect the appeal, and for an order allowing re-entry into the premises.

The underlying appeal was from a Landlord and Tenant Board decision.

The Divisional Court dismissed the motion, finding that the appeal was an attempt to relitigate factual findings rather than raising a question of law, and noting the tenant's failure to take any steps to perfect the appeal for over a year.

The balance of convenience favoured the landlord.

The appellant landlord appealed a decision of the Landlord and Tenant Board that found it lacked jurisdiction to proceed with an eviction application.

Prior to the appeal hearing, the landlord obtained an order requiring the tenants to pay rent, failing which a Writ of Possession would issue.

The tenants failed to pay and were evicted.

The Landlord and Tenant Board, as intervenor, brought a preliminary motion to dismiss the appeal as moot.

The Divisional Court agreed, finding that the execution of the Writ of Possession effectively terminated the tenancy, the dispute had disappeared, and there were no circumstances warranting the exercise of discretion to hear the moot appeal.

The landlords appealed a decision of the Landlord and Tenant Board dismissing their application to evict a tenant for the landlord's own use.

Although the Board found the application was made in good faith, it refused the eviction under s. 83(1) of the Residential Tenancies Act, 2006, finding that eviction would be more unfair to the vulnerable tenant than denying the landlord's application.

The Divisional Court applied a reasonableness standard of review and held that the Board did not err in principle by weighing the overall circumstances and unfairness to both parties.

The appeal was dismissed.

The tenant appealed a Review Order of the Landlord and Tenant Board that denied his request to review an eviction order for rent arrears.

The tenant sought to dispute the loss of his rent-geared-to-income subsidy.

The Divisional Court dismissed the appeal, finding that the Board correctly determined it lacked jurisdiction under s. 203 of the Residential Tenancies Act to review decisions concerning eligibility for rent-geared-to-income assistance under the Social Housing Reform Act.

The Board's refusal to grant an adjournment was also found to be reasonable.

The landlord appealed a decision of the Ontario Rental Housing Tribunal which stayed its application to evict the tenant.

The tenant had breached a mediated settlement regarding rent arrears and subsequently filed for bankruptcy.

The Tribunal held that the eviction application was a claim provable in bankruptcy and thus stayed under section 69.3 of the Bankruptcy and Insolvency Act.

The Divisional Court allowed the appeal, finding that the landlord's application sought only eviction, not the payment of arrears, and therefore was not a claim provable in bankruptcy.

The matter was remitted to the Tribunal for a new hearing.

The landlord appealed an order of the Ontario Rental Housing Tribunal granting the tenant a $10,000 rent abatement for harassment and interference with parking.

The Divisional Court upheld the finding of harassment, noting the landlord's threats to report the tenant to social assistance.

However, the court found no evidence to support the finding of parking interference, as the tenant chose to park in an unassigned spot.

The appeal was allowed in part, and the rent abatement was reduced to $6,500.

The tenant appealed a decision of the Ontario Rental Housing Tribunal dismissing his application against the landlord for harassment and coercion.

The Tribunal had dismissed the application on a non-suit motion by the landlord's agent, finding the tenant failed to establish a prima facie case.

The Divisional Court allowed the appeal, finding that the tenant was denied procedural fairness and natural justice because he was not given a meaningful opportunity to respond to the non-suit motion or call his remaining witnesses.

The Court also found the Tribunal Member misapprehended the evidence regarding intimidation and failed to control the abusive conduct of the landlord's agent.

The Tribunal's order was quashed and a new hearing directed.

The tenants appealed an eviction order issued by the Ontario Rental Housing Tribunal after the male tenant verbally assaulted and threatened the building superintendents while intoxicated.

The tenants argued the Tribunal erred by admitting an unsworn statement from a witness who was not summoned to the hearing.

The Divisional Court dismissed the appeal, finding no defect in the notice of termination and holding that the unsworn statement was admissible at the Tribunal's discretion under the Statutory Powers Procedure Act and the Tenant Protection Act.

The appellants appealed a judgment granted in favour of the respondent bank.

The Court of Appeal found no basis to interfere with the trial judge's conclusion that the bank was entitled to judgment.

However, based on fresh evidence admitted on consent, the court varied the judgment amount to $101,941.26.

The appeal was otherwise dismissed with costs.

The tenant brought a motion to vary an order that set conditions for his appeal, specifically the requirement to pay rent arrears and ongoing rent.

The tenant had not paid any arrears and his appeal had previously been dismissed for non-compliance.

As the tenant continued to refuse to pay the arrears he admitted were owing, the Divisional Court found no merit in the motion and dismissed it, awarding costs to the landlord.

The appellant tenant brought a motion to admit fresh evidence on appeal.

The Divisional Court dismissed the motion, finding that the evidence was readily available at the time of the original hearing and that the tenant had chosen not to call available witnesses.

Furthermore, the court held that the fresh evidence would not have been conclusive of the issue, applying the test from Sengmueller v. Sengmueller.

The landlord moved for an order requiring the tenant to pay rent arrears and ongoing rent into court pending the tenant's appeal of a tribunal order.

The tenant had received a 5% rent abatement but appealed seeking a further 5%, while conceding that rent was owing and withholding payment.

The Divisional Court granted the motion, finding it unjust for the tenant to remain in possession while arrears accumulated, and ordered the tenant to pay the arrears and ongoing rent into court, failing which the stay would be lifted and the appeal quashed.