Michael Bordin

The moving parties sought leave to appeal the order of Tranquilli J. dated January 14, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the amount of $7,857.16.

The appellant appealed an application judge's decision that the respondent was free to sell a property to a third party despite the appellant's right of first refusal under a lease.

The appellant had exercised its right of first refusal by matching a third-party offer, which included a 30-day financing condition.

The appellant failed to obtain financing, requested an extension which was refused, and the agreement expired.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's commercially reasonable interpretation that the right of first refusal was exercisable only once and was spent after the appellant failed to waive the financing condition.

The applicants, five individuals experiencing homelessness, sought an interlocutory injunction to prevent the City of Hamilton from enforcing a by-law prohibiting camping in city parks.

They argued that enforcement during the COVID-19 pandemic and housing crisis violated their rights under section 7 of the Charter and the Human Rights Code.

The court applied the RJR-MacDonald test.

While finding a serious issue to be tried, the court concluded the applicants failed to establish irreparable harm specific to themselves, as they had been offered or received shelter.

The court also found the balance of convenience favoured the City, citing the public interest in safe parks, the City's efforts to provide shelter and supports, and the health and safety risks associated with the encampments.

The motion for an injunction was dismissed.

The moving parties, acting personally and as estate trustees, brought a motion for leave to appeal the order of Sheard J. dated December 21, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs fixed at $5,000 payable to the responding parties.

The appellant was arrested by Ontario Provincial Police officers while walking to a counter-protest flag rally, having committed no offence and presenting no threat of violence.

The police relied on a purported common law power to arrest someone acting lawfully in order to prevent an apprehended breach of the peace by others.

Applying the ancillary powers doctrine, the Court held that no such common law power exists: the power is not reasonably necessary because statutory arrest powers already address situations where individuals resist or obstruct officers taking less intrusive measures, and effectiveness of a police action alone cannot justify an arrest if less intrusive means were available.

The Court restored the trial judge's award of damages for battery, wrongful arrest and false imprisonment, and found no new trial was warranted on the issue of excessive force because the arrest itself was unlawful.

The plaintiff commenced an action against five lawyers and their law firms for breach of fiduciary duty and negligence arising from the sale of a matrimonial home and payment of debts.

Four of the lawyers and their firms brought a motion for summary judgment to dismiss the action.

The court granted the motion, finding that the plaintiff's claim was statute-barred under the Limitations Act, 2002, as she had discovered the material facts of her claim more than two years before commencing the action.

The court also noted that the action against opposing counsel in the family law proceedings would have been dismissed regardless, as no duty of care is owed to an opposing party.

The appellant sought a declaration that he was the legal owner by adverse possession of land formerly part of a railway corridor contiguous to his backyard, which was owned by the City of Niagara Falls.

The application judge denied the application, finding that the appellant failed to prove the third element of the adverse possession test: that the City had been effectively excluded from possession of the disputed land in the ten years immediately prior to July 19, 1999.

The Court of Appeal upheld this decision, finding no error in the application judge's conclusion and dismissing the appeal with costs awarded to the City.

The respondent, the City of Niagara Falls, successfully defended an application by Michael Richard for a declaration of ownership by adverse possession of disputed public land.

The City subsequently requested its costs.

The court awarded partial indemnity costs to the City, finding no reason to deviate from the general rule that a successful party is entitled to costs.

The application was deemed important to both parties and moderately complex due to the historical nature of the evidence and the involvement of public land, but not unique or novel.

The applicant sought a declaration of ownership by adverse possession of a strip of land owned by the respondent municipality.

The court applied the three-part test for adverse possession, particularly focusing on the "inconsistent use" test for municipal land held for public benefit.

While the applicant's predecessors had actual possession and intended to exclude the public, the court found that planting trees did not effectively exclude the City, as the land remained connected to a public trail and the use was not inconsistent with the City's intention to hold the land for future public use.

The application was dismissed.

The applicants, a registered political party, contracted to place political advertisements in municipal bus shelters.

The city removed the advertisements on the basis that they discriminated against the transgendered community, without providing the applicants an opportunity to be heard or considering their freedom of expression.

The Divisional Court quashed the city's decision and a subsequent ratifying motion, finding that the city breached the duty of procedural fairness by failing to balance the competing Charter rights and by denying the applicants natural justice.

A homeowner appealed a lower court decision that upheld a greenhouse operator's use of storing and grinding wood on-site as an accessory use under the local zoning bylaw.

The homeowner sought a declaration that the wood storage and grinding operations violated the zoning bylaw.

The Court of Appeal upheld the lower court's decision, finding that storing and grinding wood for heating greenhouses constitutes a natural and normal incident of operating a greenhouse and therefore qualifies as an accessory use under the bylaw definition.

The court rejected the homeowner's argument that a restrictive interpretation of "naturally and normally incidental" was required.

This is a costs endorsement following the Court of Appeal's decision allowing an appeal of a trial judgment in a civil action involving allegations of excessive force during arrest.

The respondent sought to avoid paying the costs of the appeal on the basis that the matter constituted public interest litigation.

The Court of Appeal rejected this argument, finding that the nature of the proceeding did not fall within the recognized categories of public interest litigation.

The appellants were awarded costs of the appeal in the amount of $25,000 inclusive of disbursements and HST.

The respondent was arrested by Ontario Provincial Police officers on May 24, 2009, near Douglas Creek Estates in Caledonia while carrying a Canadian flag to participate in a flag-raising rally.

The trial judge found the arrest was unlawful and awarded damages for false arrest, wrongful imprisonment, and breach of Charter rights.

On appeal, the majority (Nordheimer and Cronk JJ.A.) found the arrest was lawful as a preventive measure to avoid an imminent breach of the peace, but remitted the case for a new trial on the issue of excessive force.

Huscroft J.A. dissented, finding the arrest was unlawful and that the trial judge's findings should not be disturbed.

An appeal from a motion judge's order rectifying a will to correct a drafting error.

The estate trustee sought to correct the will to reflect the deceased's intention to liquidate sufficient shares to provide two children with $1 million each.

The widow, who did not challenge the will and elected to take under it, appealed the rectification order and sought leave to appeal the costs disposition.

The Court of Appeal upheld the motion judge's decision, finding no error in principle and that the factual findings were amply supported by evidence.

Leave to appeal costs was denied.

Following a successful summary judgment motion, the plaintiff and the defendant by counterclaim sought costs on a substantial indemnity basis.

The court awarded substantial indemnity costs, noting the responding parties' unreasonable delays, unproven allegations of fraud and fabricated evidence against a solicitor, and the terms of the mortgage which provided for substantial indemnity costs.

The court ordered the responding parties to pay total costs of $181,903.41.

Hamilton Cab Company Inc. and John Dean sought summary judgment against Jaspal Gill and related numbered companies concerning outstanding debt, mortgage enforcement, and a counterclaim for professional negligence.

The court granted Hamilton Cab's motion for possession of mortgaged properties and partial summary judgment for $470,487.62, with additional debt to be determined on a reference.

The court dismissed the Gill defendants' counterclaim against John Dean, finding no genuine issue for trial regarding the validity of the agreements or the solicitor's standard of care.

The court assessed costs following a judgment dismissing the plaintiffs' action and the Smiths' counterclaim, with costs payable on a full indemnity basis.

The defendants by counterclaim, Damandeep-Singh Aujla and Daman Aujla Professional Corporation, sought full indemnity costs.

The court found the proceedings complex, involving multiple parties and transactions, and noted the Smiths' lack of credibility, delay tactics, and refusal to admit key facts.

The claims against Mr. Aujla, a professional, were of great importance and impugned his integrity.

The court found the hourly rates of counsel reasonable and awarded full indemnity costs to Damandeep-Singh Aujla and Daman Aujla Professional Corporation, totaling $43,486.92, after disallowing Westlaw Research as an overhead expense.

The plaintiff and all defendants by counterclaim brought motions for summary judgment against the defendants/plaintiffs by counterclaim (the Smiths) concerning a property refinancing.

The Smiths alleged misrepresentation of mortgage debt and breach of trust/negligence by the solicitors involved.

The court found no genuine issue for trial, concluding the Smiths' position lacked credibility due to their failure to disclose the true mortgage amount, their acceptance of the refinancing proceeds, and the absence of any actual loss.

The court granted summary judgment to the moving parties, dismissing the Smiths' counterclaim and ordering full indemnity costs, deeming the action unmeritorious.

The plaintiff and defendant previously agreed to bifurcate their breach of contract action into a liability trial and a damages trial.

After winning the liability trial, which focused on the defendant's Ontario facility, the plaintiff sought to claim damages relating to the defendant's subsidiaries in China.

The defendant moved to declare this claim an abuse of process and barred by cause of action estoppel.

The court granted the defendant's motion, finding that the plaintiff should have raised the issue of the China facilities during the liability trial.

Allowing the plaintiff to advance a new theory of liability during the damages phase would violate principles of judicial economy, finality, and fairness.

The appellants (clients) appealed an order granting the respondent solicitors' motion to oppose confirmation of an assessment officer's report.

The assessment officer had disallowed a $500,000 bonus payable under a contingency fee agreement, finding it unfair and unreasonable.

The motion judge held that the assessment officer lacked jurisdiction to consider the fairness and reasonableness of the agreement, and found the agreement to be fair and reasonable.

The Court of Appeal dismissed the appeal, confirming that assessment officers do not have jurisdiction to determine the enforceability of contingency fee agreements unless explicitly delegated, and upheld the motion judge's finding that the bonus was reasonable given the risk and the $20 million value of the property saved from foreclosure.