M. Cupello

The mortgagee brought a motion for interim mortgage payments on a valid commercial vendor take-back mortgage of approximately $2.7 million arising from the purchase of a tourist lodge.

The moving party sought $15,000 per month commencing August 2025 until trial.

The court ordered the responding parties to pay $12,000 per month commencing February 2026, finding that contractual obligations in commercial contracts are not to be lightly ignored, that the mortgagee was suffering significant economic consequences from non-payment, and that the responding parties failed to provide current financial information to support their claim of hardship.

The mortgagee brought a motion for an order requiring interim mortgage payments of $15,000 per month on a valid vendor take-back commercial mortgage of approximately $2.7 million arising from the purchase of a tourist lodge.

The respondents opposed, arguing the motion was an attempt to relitigate a previously dismissed partial summary judgment motion and that payments would cause financial hardship.

The court, noting the mortgage was valid, that no fraud was alleged, and that the respondents failed to provide current financial information to support their hardship claim, ordered interim without-prejudice payments of $12,000 per month commencing February 2026 until trial.

The court emphasized that contractual obligations in commercial matters are not to be lightly ignored and encouraged both parties to reassess the economic realities of the litigation.

The applicant mother was completely successful on an urgent motion for the return of the children after the respondent father wrongfully retained them following a summer visit.

The mother sought substantial indemnity costs of $2,565.

The father argued for no costs or a reduced amount, claiming the mother was not completely successful because police enforcement was not ordered.

The court rejected the father's argument, noting police enforcement was only omitted because the father undertook to comply.

Finding the father's failure to return the children to be inappropriate behaviour, the court awarded the mother substantial indemnity costs of $2,565 plus HST.

The moving party appealed a previous order vesting title of his real estate to the respondent estate and sought a stay of any sale of the property pending the appeal.

The parties consented to a stay until June 15, 2023, but disagreed on whether it should continue until the appeal's disposition if no decision was made by that date.

Applying the three-part test for an injunction, the court found a serious issue to be tried, potential irreparable harm if the property was sold, and that the balance of convenience favoured the moving party.

The court ordered the stay to continue until the disposition of the appeal.

The applicant brought a motion to dismiss the respondent's appeal for delay, and the respondent brought a cross-motion to extend the time to perfect her appeal.

The respondent was appealing a summary judgment order that found the child in need of protection, placed the child in extended society care, and denied her access.

The court applied the test for extending time to perfect an appeal and found that the respondent provided no explanation for the delay, there was prejudice to the child in further delay, and the evidentiary record supported the motion judge's conclusions.

The respondent's motion to extend time was dismissed, and the applicant's motion to dismiss the appeal for delay was granted.

The defendant was wholly successful on a motion requiring the plaintiff to post security for costs and sought partial indemnity costs of $14,518.73.

The plaintiff argued for $5,000 to $6,000 but filed its bill of costs late, which the court declined to consider.

The court disallowed time claimed for legal assistants but noted the plaintiff had filed voluminous unnecessary materials, justifying the defendant's time spent reviewing them.

The court fixed costs payable by the plaintiff to the defendant at $10,000 inclusive of HST and disbursements.

The court determined the costs of an application to wind-up two corporations and a related action, following years of protracted and bitter litigation.

The applicants were largely successful and sought enhanced costs, including against a non-party shareholder.

The court awarded substantial indemnity costs for several motions due to the respondents' vexatious and obstructive conduct.

The court also awarded costs to a self-represented litigant for time spent performing work ordinarily done by a lawyer.

The non-party shareholder was held jointly and severally liable for a portion of the costs in the action due to her unreasonable refusal of settlement offers.

The mother sought a stay of an interim access order that granted the father unsupervised access to their four-year-old child pending her appeal of that order.

The father had not seen the child for over a year and had a history of mental health issues, though no agency had raised concerns about his parenting ability.

Applying the three-part test for a stay, the court found that the balance of convenience favoured a brief period of supervised access to assist the child's reintegration with the father.

The motion to stay was granted in part, varying the lower court's order to require three supervised visits before the unsupervised access schedule commenced.

The plaintiff brought an action claiming she overpaid a private mortgage based on an alleged oral agreement to reduce the interest rate from 14% to prime plus 4% upon renewal.

The defendant estate counterclaimed for the outstanding balance at 14% interest and moved for summary judgment.

The court granted summary judgment, finding the plaintiff's claim was barred by the Statute of Frauds as there was no written evidence of the alleged oral agreement.

The court also held that the doctrine of part performance did not apply because the plaintiff's continued mortgage payments were not unequivocally referable to the alleged oral agreement.

The plaintiff's action was dismissed, and judgment was granted on the counterclaim.

The defendant brought unsuccessful motions for a writ of possession and interim preservation of property.

The plaintiff sought costs of the motions on a partial indemnity basis.

The court fixed the plaintiff's partial indemnity costs at $4,709.73 but ordered that they be payable in the cause, as the issue of possession was the central issue to be determined at trial.

At a status hearing, the court considered whether to dismiss the plaintiffs' action for delay under Rule 48.14(1) of the Rules of Civil Procedure.

The action, which involved a shareholder dispute, had been commenced in 2012 and was inextricably linked to a separate application to wind up the corporations.

The court found that the plaintiffs failed to provide a reasonable explanation for the delay, having made a strategic decision to await the outcome of the application before proceeding with the action.

Finding that the defendants would suffer prejudice if the action proceeded, the court dismissed the action for delay.

The defendant sought costs after successfully moving to discharge a construction lien that the plaintiff had improperly registered.

The plaintiff had registered the lien out of time and in the name of an individual rather than the contracting corporation.

The court found that while the lien was ill-conceived, the plaintiff's conduct was not reprehensible, scandalous, or outrageous, as the defendant did owe the underlying debt for a wheelchair lift.

The court awarded the defendant partial indemnity costs of $4,500, payable only upon the defendant satisfying the $36,537.50 consent judgment owed to the plaintiff.

The applicant birth mother sought access to her biological child, who had been adopted by the applicant's mother and stepfather.

The court considered whether the applicant had standing to apply for access under section 21 of the Children's Law Reform Act, given the prohibition in section 160(1) of the Child and Family Services Act.

The court found that the applicant did not meet the exceptional circumstances required to override the statutory prohibition, as she had not established a sufficient post-adoptive relationship or received assurances of continued contact.

The application for standing was dismissed.

Following a trial on child and spousal support where the respondent was successful in resisting the applicant's claim to impute income, the court determined the issue of costs.

The applicant argued for divided success, but the court found the respondent was the successful party on the focal issue.

After considering the offers to settle, the reasonableness of the parties' behaviour, and the travel costs claimed for out-of-town counsel, the court awarded the respondent costs fixed at $30,000 for fees and $5,000 for disbursements, plus HST.

The applicants purchased property subject to a 99-year lease held by the respondent flying club.

Seven years later, the applicants sought to declare the lease void for contravening the Planning Act, arguing it was executed after an amendment that repealed an exemption for long-term leases.

The respondent argued the lease was saved by the doctrine of part performance prior to the amendment.

The court applied the four-part test for part performance and found that the respondent's actions, including surveying the property, making improvements, and paying rent, constituted part performance prior to the amendment.

The application was dismissed.

The parties separated after a five-year relationship.

They agreed to shared custody of their two children.

The applicant mother, a full-time teacher, sought to impute income to the respondent father, arguing he was intentionally underemployed as a supply teacher.

The court declined to impute income, finding the father's pursuit of a full-time teaching career reasonable despite the delay caused by hiring regulations.

Applying the Contino framework for shared custody, the court ordered the mother to pay $750 monthly in child support.

The court also awarded the father $250 monthly in spousal support on compensatory and non-compensatory grounds, recognizing his career sacrifices to care for the children during the marriage.

The plaintiff, a 20-year employee, went on stress leave and never returned to work after her employer hired an individual who had sexually harassed her 12 years earlier.

The plaintiff sued for constructive dismissal and intentional infliction of mental suffering.

The court dismissed the tort claim, finding that while the employer's conduct was flagrant and outrageous, it was not calculated to produce harm.

However, the court found the plaintiff was constructively dismissed because the employer's dismissive response to her concerns made continued employment intolerable.

The plaintiff was awarded 12 months' pay in lieu of notice and $100,000 in Honda damages for the employer's insensitive conduct.

The moving party brought a motion to stay the enforcement of a costs order pending the disposition of its application for leave to appeal a decision dismissing its motion for summary judgment.

The court found it appropriate to grant the temporary stay, noting the practical realities of appeals and that the responding party's refusal to accept the costs on trust conditions was unreasonable.

The motion was granted, with costs awarded to the moving party.