McSweeney

The applicant bank mistakenly paid funds to the respondents' corporate account instead of garnishing them as required by a court order.

The respondents then transferred the funds to another bank to avoid garnishment.

The bank subsequently paid $90,000 to the garnishor out of its own pocket to rectify its error.

The bank brought an application to recover the funds from the respondents based on mistake of fact and unjust enrichment.

The court found that the bank made a mistake of fact and that the respondents were unjustly enriched by the $90,000 payment made on their behalf.

The court ordered the respondents to repay the $90,000 to the bank.

The plaintiff brought an action for specific performance of an agreement of purchase and sale for a residential property.

The defendant vendor, who was the ex-partner of the plaintiff's brother (the true purchaser), had returned the deposit after facing persistent harassment and pressure from the brother.

The court found that the return of the deposit constituted a repudiation of the contract which was accepted, bringing the agreement to an end.

The plaintiff's motion for summary judgment was dismissed, the defendant's cross-motion for summary judgment was granted, and the action was dismissed with substantial indemnity costs awarded to the defendant due to the brother's reprehensible conduct.

The applicant sisters brought an estate application against their brother, the respondent, alleging he misappropriated their late mother's funds while acting as her Power of Attorney for Property.

The mother suffered from dementia, and the respondent had moved into her home, taking control of her finances and co-mingling her money with his own.

The court found the respondent breached his fiduciary duties by failing to account for the funds and using them for his own family's benefit.

The court ordered the respondent removed as Estate Trustee, dismissed his claim for personal care compensation, and ordered significant deductions from his share of the estate to repay the misappropriated funds, occupation rent, and unaccounted chattels.

The plaintiff brought an urgent motion for injunctive relief to prevent the defendant, who is incapable of instructing counsel and whose financial matters are managed by her sons as powers of attorney, from dissipating her assets and becoming unable to satisfy a potential judgment for failing to close a real estate purchase.

The court found a real concern regarding the dissipation of assets and granted the injunction, ordering the net sale proceeds of the defendant's properties to be paid into court.

The court also appointed the Public Guardian and Trustee as litigation guardian for the defendant due to a potential conflict of interest with her sons.

The applicants, former members of the respondent church, sought to declare the termination of their membership null and void, arguing the church failed to follow its by-laws and denied them natural justice by not holding an oral hearing.

The court found that the church's decision-making body was properly constituted and had sufficiently investigated the applicants' disruptive conduct.

The court held that natural justice in this context did not require an oral hearing, and the applicants were given an adequate opportunity to respond to the case against them.

The application was dismissed with costs awarded to the respondent.

The defendant moved to dismiss the plaintiff's 2016 action for rent arrears due to delay under Rule 24.01(1)(c).

The plaintiff took no steps to advance the action for nearly five years after the close of pleadings.

The court found the delay to be inordinate and inexcusable, and the plaintiff failed to rebut the presumption of prejudice or provide a reasonable explanation.

The motion was granted, the action was dismissed, and costs were awarded to the defendant.

The accused, a first-time Black offender, was found guilty by a jury of simple possession of 95.6g of cocaine, having been acquitted of possession for the purpose of trafficking.

The Crown sought an 18-month conditional sentence, while the defence sought a suspended sentence.

The court considered the significant quantity of cocaine as an aggravating factor, and the accused's lack of criminal record, compliance with bail, employment, and the impact of anti-Black racism as mitigating factors.

The court imposed a 6-month conditional sentence with strict house arrest conditions, followed by 24 months of probation and 100 hours of community service.

The Crown brought a Seaboyer application seeking to adduce evidence of the complainant's consensual sexual activity with the accused immediately prior to the alleged assault and sexual assault with a weapon.

The accused did not oppose the application.

The court granted the application, finding the evidence admissible for the limited purpose of providing narrative context as to why the complainant was unclothed at the time of the alleged offences, and that its probative value outweighed any potential prejudice.

Following a successful urgent motion to return the parties' children from Florida, the applicant mother sought full indemnity costs.

The court found the respondent father acted in bad faith by unilaterally relocating the children and enrolling them in school in Florida in blatant contravention of a consent arbitral award.

Applying Rule 24(8) of the Family Law Rules, the court ordered costs on a full indemnity scale, reduced slightly for excessive hourly rates and administrative tasks, fixing the award at $17,200.

The applicant subtenant brought an application seeking damages for an allegedly unlawful lockout by the respondent sublandlord.

The applicant claimed the parties had orally agreed to a 75% rent reduction due to the COVID-19 pandemic.

The court found the applicant failed to prove the existence of the oral agreement, noting the sublandlord had requested full payment and the applicant failed to provide documentation required for a Canada Emergency Commercial Rent Act (CECRA) application.

The court held the lockout was lawful and not precluded by pandemic-related amendments to the Commercial Tenancies Act.

The application was dismissed with costs.

The defendant brought a motion for leave to examine two third-party witnesses in advance of the plaintiff's summary judgment motion for possession of mortgaged property.

The defendant argued the witnesses had evidence relevant to his claim that the plaintiff fraudulently misrepresented her financial position prior to signing their separation agreement, entitling him to equitable set-off.

The court dismissed the motion, finding the proposed evidence was not relevant to the enforcement of the separation agreement.

Furthermore, the court held that the issue of financial disclosure had already been conclusively determined in prior family law proceedings, and issue estoppel applied to prevent re-litigation.

The parties reconciled shortly after the wife filed for a simple divorce.

The wife signed an affidavit to withdraw the divorce application, but a process server failed to file it with the court.

Unaware of the reconciliation, the court granted the divorce order.

The parties brought a consent motion to set aside the divorce order.

The court granted the motion, finding jurisdiction to set aside the order on the basis of mistake under Rule 25(19)(b) of the Family Law Rules and under the court's inherent jurisdiction to prevent a miscarriage of justice.

Following a successful trial in a construction lien and breach of contract action, the plaintiff sought costs on a substantial indemnity basis.

The court reviewed the plaintiff's claimed fees and disbursements, making minor reductions for excessive time and undocumented expenses, but allowing the full cost of the plaintiff's damages expert.

The court awarded substantial indemnity costs, finding that the defendant's aggressive litigation strategy—including advancing and later abandoning a large counterclaim and unfounded allegations of dishonesty—amounted to commercial bullying that unnecessarily complicated and prolonged the proceedings.

Following a family law trial with divided success, the applicant husband sought full indemnity costs of over $100,000, relying on pre-trial offers to settle.

The respondent wife sought no costs, arguing success was divided and citing her modest financial means.

The court found that while the husband's offers did not strictly comply with Rule 18(14), his pre-trial conduct was more resolution-oriented than the wife's.

Taking into account the divided success, the wife's unreasonable refusal to engage in settlement, and her limited ability to pay, the court ordered the wife to pay costs fixed at $12,000.

The plaintiff excavation company entered into an hourly-rate contract with the defendant builder to perform excavation and grading work for a 354-home residential development.

After the plaintiff completed work on the first 261 lots, the defendant paused the project and subsequently demanded the plaintiff agree to a fixed-price contract for the remaining 93 lots.

When the plaintiff refused, the defendant hired a replacement subcontractor without providing written notice as required by the contract.

The court found that the defendant breached the contract by failing to permit the plaintiff to finish the work.

The court awarded the plaintiff its unpaid invoices of $66,213.30 and lost profit damages of $199,000.

Following an 11-year marriage, the parties proceeded to a family law trial to resolve issues of equalization, spousal support, and claims regarding the matrimonial home.

The court dismissed the wife's claim for a constructive trust interest in the post-separation increase in the home's value, finding the increase was market-driven and the husband had paid the carrying costs.

The husband's claim for occupation rent was also dismissed.

For equalization, a loan from the husband's father was discounted to 5% of its face value due to the low probability of enforcement.

The wife was found entitled to compensatory spousal support, but the quantum was set at zero due to the priority of the husband's child support obligations.

Following the dismissal of the appellant's family law appeal and the respondent's cross-appeal, the respondent sought full indemnity costs of $40,872.55.

The appellant argued for costs of $7,500.00.

The court found the respondent was the successful party but declined to award full indemnity costs, finding the appellant's conduct did not warrant it.

The court reduced the hours claimed for preparation and non-appeal related work, awarding the respondent partial indemnity costs of $16,376.70.

The applicant mother brought a motion for the return of the children and other relief after the respondent father overheld them following March break.

The court ordered a temporary suspension of the respondent's mid-week access as a remedy for the overholding.

The court also clarified the parties' final order, ruling that it does not prohibit the respondent from authorizing his common-law partner to pick up and drop off the children for access visits.

Temporary adjustments to the access exchange location were also ordered due to the COVID-19 pandemic.

The parties separated after an 18-year marriage.

The court determined the parties' incomes, imputing self-employment income to the respondent but declining to impute income to the applicant for underemployment.

The court ordered set-off child support for the parties' three children based on their respective residence schedules.

The applicant was awarded indefinite spousal support on a compensatory basis, but her claim for retroactive support to the date of separation was dismissed due to lack of effective notice.

Both parties' claims for retroactive section 7 expenses were dismissed for lack of notice, proof, and reasonableness.

The applicant's claim for a constructive trust over the matrimonial home to share in its post-separation increase in value was dismissed, as she failed to establish unjust enrichment and the equalization regime adequately addressed her contributions.

The respondent was ordered to pay an equalization payment.

The applicant sought a divorce, and the respondent counterclaimed to set aside their separation agreement, arguing she signed it under duress, without independent legal advice, without understanding it, and without proper financial disclosure.

The court found that the respondent, who had been the bookkeeper for the applicant's business, fully understood the agreement and the parties' financial situation.

The court held there was no duress, no material non-disclosure, and no unforeseen circumstances that would render the spousal support waiver unconscionable.

The respondent's claims were dismissed, and the separation agreement was upheld.