Michael Bordin

The appellant appealed the trial judge's damages assessment of $270,735 for the tort of conversion of large metal die blocks.

The appellant argued damages should be based on scrap metal value rather than replacement cost, challenged the finding that it purchased 90% of the missing blocks, and disputed a $7,500 award for the respondent's lost time and productivity.

The Court of Appeal dismissed the appeal, finding the die blocks were useable and properly valued at replacement cost, the factual findings were supported by evidence, and the employee costs were directly connected to investigating the conversion.

In a bifurcated civil action where liability had already been determined in favour of the plaintiff and damages were left for later adjudication, the plaintiff moved to dismiss or stay the defendant's summary judgment motion on damages.

The court held that an order directing a trial of an issue does not bar either party from later seeking summary judgment on that issue.

Relying on the modern approach to summary judgment endorsed by the Supreme Court of Canada, the court rejected a formalistic interpretation that would unnecessarily force parties to trial.

The plaintiff's motion was dismissed, but the parties were required to complete the discovery steps mandated by the earlier judgment before the defendant's summary judgment motion could be heard.

On cross-motions under Rule 54.09 opposing confirmation of an assessment officer’s report on three solicitor accounts, the court declined to further reduce the assessed fees apart from a disallowed contingency bonus.

The court held that the assessment officer lacked jurisdiction to determine the validity and fairness of the contingency fee agreement because that issue had not been referred for assessment.

In any event, the officer misconstrued the written agreement and made palpable and overriding factual errors in finding the bonus unfair.

The report was varied to restore the $500,000 contingency bonus, subject to further submissions on costs of the assessment, prejudgment interest, and costs of the motion.

On cross-motions under Rule 54.09 opposing confirmation of an assessment officer’s report on three solicitor accounts, the court declined to further reduce the assessed fees apart from a disallowed contingency bonus.

The court held that the assessment officer lacked jurisdiction to determine the validity and fairness of the contingency fee agreement because that issue had not been referred for assessment.

In any event, the officer misconstrued the written agreement and made palpable and overriding factual errors in finding the bonus unfair.

The report was varied to restore the $500,000 contingency bonus, subject to further submissions on costs of the assessment, prejudgment interest, and costs of the motion.

Following a trial in a civil action based on the tort of conversion, the court addressed the quantum of costs payable after awarding damages of $270,735 to the plaintiff.

The defendant conceded liability for costs on a partial indemnity scale but disputed the amount claimed.

The court considered the factors in Rule 57.01(1) of the Rules of Civil Procedure, including proportionality, counsel time spent, and the adequacy of disbursement evidence.

Concerns were raised about duplication of effort after the plaintiff changed counsel and insufficient breakdown of certain disbursements.

The court fixed costs at $75,000 in fees plus HST and $5,000 in disbursements inclusive.

A manufacturing company sued a scrap metal dealer in conversion after stolen industrial dye blocks and related materials were sold to the dealer by a third party thief.

The court held that conversion is a tort of strict liability and that the dealer was liable for purchasing and reselling property belonging to the plaintiff, even if done in good faith.

Arguments that the plaintiff had been on notice of potential theft or contributorily negligent were rejected.

Due to incomplete records and uncertainty regarding the precise quantity of stolen goods, the court approximated the amount converted and assessed damages based primarily on replacement metal cost and associated fabrication expenses rather than scrap value.

Judgment was awarded for damages reflecting the value of converted dye blocks and related losses.

The appellant appealed a judgment determining that a real estate partnership between the parties was never dissolved and that the respondent was entitled to an accounting.

The trial judge found that the respondent held legal title to the property in trust for the partnership and that the appellant's entitlement to a transfer was subject to an accounting.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the trial judge's findings.

The court also rejected the appellant's arguments that the respondent's claim was not properly before the court and that the equitable doctrine of laches applied, noting that the parties remained fiduciaries with an ongoing obligation to account.

The appellant solicitor appealed a trial judgment finding him negligent for failing to advise the respondents on the steps required to transfer a liquor licence when purchasing a pub.

The trial judge awarded $65,000 in damages based on the pub's resale value, despite finding the business was not economically viable.

The Court of Appeal dismissed the appeal, holding that the trial judge's assessment of damages was supported by evidence and entitled to deference.

The Court also rejected the argument that the respondents were the authors of their own misfortune, as reading the licence would not have informed them of the 90-day transfer requirement.

The applicant sought a vesting order under the Trustee Act transferring full title to partnership property held in trust by the respondent.

The court determined that the parties had formed an oral real estate partnership in 1987 to acquire, maintain, and sell investment properties and that the partnership continued despite discussions of dissolution.

The respondent was entitled to an accounting of partnership assets and reimbursement for excess contributions before any transfer of property could occur.

The court rejected limitation arguments, holding that equitable principles and the doctrine of laches governed the dispute.

Issues relating to accounting and potential transfer of the disputed property were reserved for further submissions.

A costs decision following a residential property dispute involving a claim for adverse possession.

The applicant succeeded in establishing adverse possession over a narrow strip of land along a backyard fence line but failed to establish adverse possession over a larger wedge of land in the side and front yard areas of the adjoining properties.

The court characterized the result as divided success but emphasized that the more significant disputed area was decided in favour of the respondents.

Applying the principle of partial indemnity costs and considering proportionality, the court awarded the respondents a portion of their costs.

The applicant was ordered to pay $6,000 inclusive of HST and disbursements.

The applicant sought a declaration of title to a disputed strip of land between neighbouring residential properties, relying on adverse possession arising before the conversion of the properties to the Land Titles system.

The court applied the test for adverse possession under the Real Property Limitations Act and the principles articulated in Ontario appellate jurisprudence requiring proof of actual, open, notorious, exclusive, and continuous possession for the statutory period.

The evidence established that a fence erected decades earlier functioned as a boundary and that the applicant’s predecessors exercised exclusive possession of the narrow strip of land south of the fence for more than ten years prior to the 1995 conversion to Land Titles.

However, the applicant failed to prove exclusive and adverse possession of the unfenced lawn area extending toward the street.

The court declared the boundary to follow the fence line in the rear yard and the registered title boundary east of the fence, vacating a previously issued injunction.

The appellant appealed an order refusing to allow late amendments to their pleadings.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that while Rule 26.01 is generally mandatory unless prejudice cannot be compensated in costs, the proposed amendments in this case were untenable and tendered at the eleventh hour by a party forced to trial.

The appellant estate appealed the dismissal of its claim that the respondent husband was unjustly enriched by the operation of his right of survivorship over farm properties held in joint tenancy with his deceased wife.

The Court of Appeal dismissed the appeal, finding no absence of juristic reason for the enrichment, as it arose by operation of law and was consistent with the parties' expectations to keep the farm properties together.

Arguments for a constructive trust based on wrongful conduct and proprietary estoppel were also dismissed.

The appellant appealed a trial judgment that limited its damages for lost parking spaces to the value of 20 spaces ($40,650) and dismissed its claim for injurious affection.

The Court of Appeal dismissed the appeal, finding that the trial judge relied on acceptable expert evidence and made no palpable and overriding error in his assessment of damages.