Megan L. Mackey

The plaintiff contractor brought a motion for summary judgment against the defendant property owner for unpaid invoices relating to balcony restoration work.

The defendant opposed the motion and brought a motion for summary judgment against the third-party engineer for contribution and indemnity, while the engineer sought summary judgment dismissing the third-party claim.

The court dismissed all motions, finding that conflicting evidence regarding whether the additional work and waterproofing were authorized created a genuine issue requiring a trial that could not be resolved without viva voce evidence and credibility findings.

The moving party sought leave to amend its pleading in a construction deficiencies action arising from a condominium conversion project, including adding a structural engineering firm as a new defendant and pleading economic loss based on dangerous defects.

The court held that, even assuming a Bird-type pure economic loss claim was available, the proposed claim against the new defendant was discoverable at least by the time the original statement of claim was issued, and was therefore barred by the two-year limitation period under the Limitations Act, 2002.

The later expert report did not postpone discoverability, as certainty and a comprehensive understanding of the claim were not required.

Leave to add the proposed defendant was refused, while other unopposed or consented amendments were allowed.

The appellants appealed an order enforcing compliance with condominium rules under s. 134(1) of the Condominium Act, 1998.

The appellant tenant argued she was subjected to oppressive conduct by the condominium corporations.

The motion judge granted the compliance order, noting that no cross-application for an oppression remedy had been brought and that alleged oppressive conduct did not excuse breaching the rules.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's exercise of discretion to grant the compliance order.

At a contested status hearing under Rule 48.14 of the Rules of Civil Procedure, the defendants sought dismissal of a long‑standing civil action for delay.

The plaintiffs were required to show cause why the action should not be dismissed by demonstrating an acceptable explanation for the delay and the absence of non‑compensable prejudice to the defendants.

The court found substantial unexplained litigation delay and concluded that the plaintiffs failed to provide an acceptable explanation.

However, the defendants failed to establish actual non‑compensable prejudice affecting their ability to present their defence at trial.

The court allowed the action to proceed subject to strict conditions, including a deadline to restore the action to the trial list and limits on further discovery.

Following a finding of oppression against the respondent condominium corporation and an award of $30,000 in general damages, the applicant sought costs ranging from $34,138.90 to $41,413.28.

The respondent argued for costs fixed at $10,000.

The court considered the factors under Rule 57.01, noting the applicant's success but also criticizing the applicant's excessive damages claim, unreasonable settlement offer, and failure to adhere to page limits for costs submissions.

Costs were fixed at $20,000 all-inclusive.

The applicant brought an oppression application arising from prolonged noise and vibration from elevators and mechanical equipment affecting a condominium unit.

The court held that the condominium corporation failed to adequately repair and maintain the common elements after years of investigation with little meaningful action, and that its reliance on an alleged by-law issue concerning a converted room was a red herring.

Applying the oppression framework, the court found the applicant's reasonable expectations were breached and that the respondent's conduct amounted to oppression, unfair prejudice, and unfair disregard.

The court awarded $30,000 in damages, dismissed the records-production and $150 fee claims, and remained seized to supervise remedial steps.

Following the discontinuance of the plaintiffs' action, the court determined the costs payable to the defendants.

The plaintiffs had sought to discontinue the action without costs, which was denied.

The court awarded partial indemnity costs to the defendants for both the action and the motion, noting the plaintiffs' reprehensible conduct in continuing the action against personal defendants despite admitting it was commenced in error.

The plaintiffs were ordered to pay a total of $53,250 in costs to the various defendants.

This was a costs decision following a summary judgment motion.

The parties agreed that the responding party would pay $18,000 all-inclusive on a partial indemnity basis, but disputed whether that amount should be set off against an outstanding prior costs award from a separate motion.

The court declined to order a set-off because the earlier award related to a different motion and there could be a dispute over interest on that earlier award.

The agreed costs award remained payable without set-off.

The defendant builder moved for summary judgment arguing that a full and final release executed by the condominium corporation in settlement of a parallel s. 23 Condominium Act action barred the plaintiff unit owner's separate contractual action concerning deficiencies unique to its units and immediately related common elements.

The court held that the condominium corporation had no authority under s. 23 to settle or release the plaintiff's distinct individual claim for specific performance and related relief, and interpreted the release narrowly so it did not extend to that action.

The court also held that res judicata or abuse of process barred the defendant from relying on a release defence that could have been raised before the Court of Appeal when the scope of the plaintiff's right to maintain the action was litigated.

Because the parallel proceeding had settled and the release did not bar the claim, the partial stay would cause injustice and was lifted.

Following a prior ruling ordering the discharge of a condominium common expense lien under s. 85 of the Condominium Act, the court determined the appropriate costs award.

The court emphasized that costs are discretionary under s. 131(1) of the Courts of Justice Act and guided by the principles in Rule 57.01 of the Rules of Civil Procedure, including complexity, importance of the issues, and litigation efficiency.

The court found that the responding party’s former counsel had taken an unnecessarily complex and evasive approach to what should have been a straightforward statutory process, generating unnecessary expenses.

While the conduct did not warrant substantial indemnity costs, it justified a level of costs between partial and substantial indemnity.

The applicant was awarded $10,000 in legal fees plus HST and $1,098.75 in disbursements.

The appellant purchased eight condominium units from the respondent developer, four of which were custom-designed for use as a head office.

A dispute arose over the adequacy of the common elements, specifically the exterior doors, windows, and HVAC system, to meet the custom design requirements.

The appellant sued for specific performance or damages.

The respondent successfully moved at the Divisional Court to strike the claim on the basis that section 23(1) of the Condominium Act, 1998 grants exclusive standing to the condominium corporation to sue regarding common elements.

The Court of Appeal allowed the appeal, holding that the word 'may' in section 23(1) is permissive.

It grants the corporation standing to sue on behalf of owners for common issues but does not deprive an individual unit owner of the right to pursue contractual or unit-specific claims relating to common elements immediately pertaining to their unit.

In a proposed securities class action alleging misrepresentations in the primary and secondary markets, the plaintiffs sought an order compelling defendants to deliver statements of defence and requested that the certification motion be heard together with a leave motion under s. 138.8 of the Securities Act.

The defendants opposed delivering defences before certification and sought a sequence of motions beginning with the leave motion, followed by Rule 21 motions and then certification.

The court held that pleadings should generally be completed before certification and that ordering the delivery of a statement of defence was not contrary to law or due process.

However, the court limited the requirement to defendants who filed affidavits under s. 138.8(2) of the Securities Act, while permitting other defendants to plead voluntarily without losing the ability to bring Rule 21 motions.

The court further ordered that the leave motion and certification motion be heard together to avoid delay, inefficiency, and serial appeals.

The applicant condominium corporation brought a motion to quash the respondent's amended notice of appeal.

The respondent sought to appeal a judge's decision refusing to grant leave to appeal under s. 45 of the Arbitration Act.

The Court of Appeal held that no appeal lies from such a refusal unless the judge mistakenly declined jurisdiction.

As the leave judge fully considered the application and did not decline jurisdiction, the appeal was quashed.

Following the release of the main appeal decision, the respondent requested a reconsideration based on information in the appellants' trial counsel's time dockets.

The Court of Appeal declined the request, finding the new information did not alter its conclusion regarding the trial judge's misapprehension of evidence.

The Court awarded trial costs of $50,000 to the appellant Alexander N. Kovachis.

The landlord terminated a commercial head lease and locked out the tenant, which prevented the subtenant from using the exterior wall for advertising.

The subtenant sued the landlord for the tort of intentional interference with contractual relations and economic interests.

The trial judge found the landlord liable.

On appeal, the Court of Appeal reversed the decision, holding that the trial judge erred in equating the foreseeability of harm to the subtenant with an intention to injure.

The evidence did not establish that the landlord knew of the subtenant or intended to harm it when the decision to terminate the head lease was made.

An ageing father gratuitously placed the bulk of his assets in joint accounts with his adult daughter.

Upon his death, the daughter claimed the balance through a right of survivorship, while her ex-husband claimed the assets formed part of the estate.

The Supreme Court of Canada held that the presumption of resulting trust applies to gratuitous transfers to adult children, limiting the presumption of advancement to minor children.

However, the Court found sufficient evidence that the father intended to gift the right of survivorship to his daughter, rebutting the presumption of resulting trust.

The appeal was dismissed.

The applicant, City of Toronto Economic Development Corporation (TEDCO), was successful on an application for judicial review regarding a freedom of information request made by the respondent, Showline Limited.

TEDCO sought partial indemnity costs of $18,479.00 against Showline.

Showline argued that no costs should be awarded as it was merely exercising its statutory rights and the case raised novel issues of statutory interpretation.

The Divisional Court held that costs should follow the event, noting that Showline is a private commercial entity that mounted a vigorous response.

Applying the principles from Boucher, the court found the requested amount fair and reasonable and awarded TEDCO $18,479.00 in costs against Showline.

The applicant, City of Toronto Economic Development Corporation (TEDCO), sought judicial review of a decision by the Information and Privacy Commissioner/Ontario (IPC) which found that TEDCO was deemed to be part of the City of Toronto under subsection 2(3) of the Municipal Freedom of Information and Protection of Privacy Act.

The IPC had ordered the City to obtain records from TEDCO responsive to a freedom of information request.

The Divisional Court quashed the IPC's decision, holding that the adjudicator erred in interpreting the term 'officers' in subsection 2(3) to include 'directors'.

The Court found that TEDCO, incorporated under the Business Corporations Act, is not subject to the Act.