Maurice J. Neirinck

The appellant appealed a decision regarding the distribution of proceeds from a mortgage sale.

The appellant sought to include future litigation costs related to claims of improvident sale or slander of title as 'expenses incident to the sale' under s. 27 of the Mortgages Act.

The Court of Appeal dismissed the appeal, holding that future costs are not 'then due' and therefore do not fall within s. 27.

The court also found no declaration in the mortgage permitting the parties to contract out of the Act under s. 30.

The Court of Appeal issued a costs endorsement following an appeal.

The parties agreed that costs for both the appeal and the original application should be awarded on a partial indemnity basis.

The court awarded the appellants costs of the original application fixed at $3,210 plus disbursements and GST, and costs of the appeal fixed at $6,500 inclusive of disbursements and GST.

The landlord appealed a judgment declaring it had no right to terminate a commercial lease under a clause based on the tenant's gross revenue.

The application judge had granted the declaration on an application for relief from forfeiture, finding the landlord acted in bad faith and failed to prove the facts necessary to invoke the termination clause.

The Court of Appeal allowed the appeal and set aside the judgment, holding that relief from forfeiture is not available for a contractual right of termination that is not based on default or breach.

The Court further held that the tenant bore the burden of proving the landlord was not entitled to exercise the termination right, and that the absence of good faith does not preclude a commercial landlord from exercising its contractual rights.

The parties separated after a 36-year marriage.

The husband's pension was equalized as property, and he paid spousal support.

Upon retirement, the husband applied to reduce spousal support, arguing that paying support from his pension income constituted 'double dipping' since the pension had already been equalized.

The Supreme Court of Canada held that to avoid double recovery, it is generally unfair to allow the payee spouse to reap the benefit of the pension both as an asset and then again as a source of income.

The payee spouse has an obligation to use the assets received on equalization in an income-producing way.

The Court reinstated the motions judge's order reducing spousal support.

The appellant challenged a summary judgment order that had dismissed most of his claims arising from an alleged agreement concerning the purchase, development, and later sale of a Toronto property.

The Court of Appeal held that the dispute turned on conflicting evidence and the central question of good faith, which required findings of fact, weighing of evidence, and implicit credibility determinations.

Those issues could not properly be resolved on a summary judgment motion.

The appeal was allowed, the cross-appeal dismissed, and the summary judgment motion dismissed.

The appellants appealed a trial judgment regarding an accounting between the parties arising out of a joint venture involving travel agencies.

The trial judge had reviewed disputed figures, accepted some from each party, and made credibility findings preferring the respondent's evidence.

The Court of Appeal found no reversible error, noting the trial judge's detailed and even-handed assessment of the evidence.

The appeal was dismissed.

The appellant material supplier appealed a master's order discharging its construction lien and vacating its certificate of action.

The master had found the lien was registered out of time by applying the 'deemed completion' provision of the Construction Lien Act to the parties' prevenient arrangement.

The Divisional Court allowed the appeal, holding that the 'deemed completion' provision does not apply to a prevenient arrangement.

Instead, the time limit for preserving a lien under a prevenient arrangement begins to run from the date of the last delivery of materials, meaning the appellant's lien was perfected in time.

The appellant public utility negligently underbilled the respondent dairy co-operative for electricity over a seven-year period due to a multiplier error.

When the utility sued to recover the arrears on a quantum meruit basis, the respondent raised the defence of equitable estoppel, having relied on the bills to set its own prices.

The Supreme Court of Canada held that unlike the legislation in Maritime Electric, the Ontario Power Corporation Act does not impose a positive statutory duty to collect arrears that would preclude the defence of estoppel.

The appeal was dismissed.