Michael D. Swindley

The defendants, a real estate agent and his brokerage, brought a motion under r. 21.01(1)(a) of the Rules of Civil Procedure to dismiss the plaintiff estate trustee's action as statute-barred under s. 38(3) of the Trustee Act or s. 4 of the Limitations Act, 2002.

The action alleged that the defendants conspired to purchase property from a cognitively impaired deceased at below fair market value.

The court found the claim was statute-barred under the Trustee Act's strict two-year period and that fraudulent concealment could not toll the limitation because no concealment occurred after the deceased's death.

However, the court held that the limitation period was suspended under s. 7 of the Limitations Act, 2002 due to the deceased's alleged incapacity, and dismissed the motion.

The plaintiff sought to recover $100,000 loaned to a failed exotic dance bar and restaurant business in Brockville, claiming the defendant Tim Beale personally guaranteed the loan and was a silent partner in the business.

The defendant denied both allegations, claiming he was merely an investor who also lost money when the business failed.

The court found the action was statute-barred under the Limitations Act, as the plaintiff made a demand for payment in September 2014 but did not commence litigation until April 2017, exceeding the two-year limitation period.

Additionally, on the merits, the court found insufficient evidence to prove the defendant guaranteed the loan or was a silent partner.

The action was dismissed.

The plaintiffs brought a motion to remove Martin Diegel and his firm as counsel of record for the defendants, alleging a conflict of interest because Mr. Diegel may be a necessary witness at trial and because of a potential conflict between the defendants.

The court found that the motion was premature, that there was no clear evidence Mr. Diegel would be a necessary witness, and that any potential conflict between defendants was speculative.

The motion was dismissed, with costs to the defendants.

The court dismissed a motion by the defendants, a real estate agent and her brokerage, to strike the plaintiff’s negligence claim.

The defendants argued the claim was within the exclusive jurisdiction of the Landlord Tenant Board (LTB), was statute-barred, and disclosed no reasonable cause of action.

The court found the LTB did not have jurisdiction over claims of real estate agent negligence, the limitation period had not clearly expired, and the statement of claim disclosed all elements of negligence.

The action was allowed to proceed.

This appeal addressed the autonomy of adults with disabilities under parental charge, specifically concerning parenting orders under the Divorce Act for adults presumed capable.

The Court of Appeal found that the motion judge erred by making a temporary parenting order for a 26-year-old son with Down Syndrome without a specific determination of his capacity to make decisions about his residence and without affording him the opportunity to participate in the proceedings.

The court emphasized the common law presumption of capacity and the audi alteram partem principle, holding that an adult presumed capable must be served and given the right to be heard on matters affecting their fundamental rights.

The appeal was allowed, and the parenting order was set aside.

The defendants brought a motion to transfer the action from Toronto to Brockville.

The action relates to a failed real estate transaction for a property located in Brockville.

The plaintiff resides in Mississauga, while most defendants and the property are in Brockville, with no connection to Toronto.

The court granted the transfer, finding that almost all factors favoured Brockville, and awarded costs of $1,000 to the moving defendants.

The applicants, Reginald and Linda Cyr, sought costs after successfully resolving an application to interpret a previous judgment regarding their interment rights in the respondent's cemetery.

The previous judgment had contradictory paragraphs regarding the dimensions of the "Cyr Family Garden." The court had previously suggested a compromise, which the parties did not initially take.

Although the parties eventually reached a comprehensive agreement on the main issues, they could not agree on costs.

The applicants sought partial indemnity costs of $38,596.40.

The respondent argued the applicants should have accepted an earlier proposal and that the amount claimed was disproportionate.

The court found the applicants were entirely successful on the application, which was necessary due to the respondent's unilateral actions and the ambiguity of the prior judgment.

The court awarded the applicants fixed costs of $10,000, all inclusive.

This trial involved an unmarried couple's claims for unjust enrichment and constructive trust regarding two properties (Stone Street and Greenlees Drive) and Section 7 child expenses.

The court found both parties' financial evidence unreliable.

The father was awarded $8,000 plus interest for his contribution to the mother's Stone Street property, and the mother was awarded $3,000 plus interest for her out-of-pocket expenses on the father's Greenlees Drive property.

The mother's claim for Section 7 expenses was dismissed due to lack of substantiation and consent.

Costs for parenting issues and the trial were reserved for separate submissions.

This summary judgment motion concerned a failed real estate transaction where the vendor (Hastings Local Housing Corporation) terminated the Agreement of Purchase and Sale (APS) due to an inability or unwillingness to obtain severance for two properties that had merged titles.

The plaintiff-purchaser sought specific performance or damages.

The court found that the vendor had a contractual obligation and a duty to act in good faith to apply for severance under the terms of the APS (clauses 10 and 15) and the Planning Act.

The vendor's failure to apply for severance constituted a breach of contract.

While specific performance (transfer of property) could not be ordered without severance, the court declared the contract binding and ordered the vendor to pursue a bona fide application for severance within 60 days.

This costs endorsement arises from a property boundary dispute between neighbours concerning a minor encroachment.

The court found that the litigation was unnecessary and driven primarily by the applicants, as the respondents had already taken steps to remediate the issue in a timely manner, funded by their title insurer.

The remediation work was completed to the satisfaction of both parties before the application's merits were heard.

The court declined to award costs to either party, finding that the applicants pursued excessive litigation steps and that the respondents, while perhaps lacking initial sensitivity, had resolved the substantive issue.

Following the dismissal of the plaintiff's action under Rule 21, the defendants sought their costs on a substantial indemnity basis.

The plaintiff had made sweeping, unproven allegations of fraud, theft, and professional misconduct against the defendants.

The court found that these unfounded allegations warranted elevated costs to sanction the plaintiff's reprehensible conduct.

Additionally, two defendants had made offers to settle that the plaintiff failed to accept, further justifying substantial indemnity costs.

The court ordered the plaintiff to pay the defendants' costs totaling $58,474.91.

The self-represented plaintiff brought an action against her former landlord, a real estate agent, a paralegal, her former spouse, and the Ottawa Police Service, alleging an 'eviction scam' that resulted in the loss of her personal property.

The defendants brought Rule 21 motions to strike the claim and dismiss the action.

The court granted the motions, finding that the Landlord and Tenant Board had exclusive jurisdiction over the core dispute, the claims against the real estate agent were statute-barred, and the pleadings failed to disclose any reasonable cause of action against any defendant.

The action was dismissed as frivolous and vexatious against the paralegal and former spouse, and the claim was struck in its entirety without leave to amend.

The applicants brought an application seeking the interpretation of a previous judgment regarding the dimensions of their purchased cemetery plots, known as the Cyr Family Garden.

The parties disputed whether the garden consisted of a larger trapezoid area shown on a land survey or a smaller area adjacent to six burial spaces.

The court applied the principles for interpreting court orders and concluded that, based on the circumstances of the previous trial, the parties had contested and the judgment intended to grant the larger trapezoid area containing both the conventional grave plots and the cremation places.

The Applicant brought a motion to change, seeking a declaration of the Respondent's 2018 income for the purpose of calculating and enforcing child and spousal support for 2019, based on a prior consent order.

The Respondent cross-moved, opposing the declaration, arguing that capital gains from a share sale should be excluded as non-recurring income to avoid "double-dipping," and seeking to terminate child support for all three children.

The court found jurisdiction to make the income declaration, ruled that the Respondent's full Line 150 income (including taxable capital gains) should be used for support calculations as per the consent order, and terminated child support for the second child who had graduated and was independent, but continued it for the third child.

This is a costs endorsement following a successful appeal by 2651171 Ontario Inc. The Court of Appeal for Ontario determined the quantum of costs for the motions for summary judgment and the action.

The appellant sought substantial indemnity costs based on an offer to settle made under Rule 49.10(1).

The respondent, Patrick Brey, objected to the quantum and argued for a reduction due to the appellant's unproven allegations of fraud.

The court found the appellant prima facie entitled to substantial indemnity costs due to the offer to settle, but ordered a reduction in the total amount awarded due to the unfounded allegations of fraudulent misrepresentation made by the appellant, emphasizing that such serious allegations require strict pleading and proof.

This appeal concerned the interpretation of a real estate agreement's requisition deadline for off-title objections, specifically regarding the lawful use of a property described as a fourplex.

The appellant buyer raised timely objections about the property's legal use, which the respondent seller refused to address, leading to the transaction's failure.

The motion judge had erred by misinterpreting the deadline provision, deeming the objections untimely.

The Court of Appeal found the objections were timely and valid, as the property's lawful use as a fourplex could not be confirmed.

The appeal was allowed, the lower court's judgment set aside, and the appellant was granted the return of its deposit and damages.

The applicants sought a declaration that their use of a portion of the respondent's adjacent land for parking, a storage shed, and gardens was permitted under a 1972 easement granting a right of way for 'general recreation'.

Alternatively, they claimed a prescriptive easement or adverse possession of the land under the shed.

The court found that the installation of fixtures and routine parking did not fall within the ordinary meaning of 'general recreation' and were not reasonably necessary ancillary rights.

The claims for prescriptive easement and adverse possession were also dismissed due to insufficient evidence of continuous use and intention to exclude the true owner for the requisite periods prior to the property's conversion to the Land Titles system.

The plaintiff landlord brought a motion for summary judgment to recover arrears of rent from the defendant commercial tenant.

The tenant argued it was relieved of its obligation to pay rent because the COVID-19 pandemic and resulting government restrictions triggered the lease's force majeure clause or frustrated the contract.

The court found that while the government restrictions triggered the force majeure clause, the clause explicitly did not excuse the tenant from paying rent.

The court also held that the doctrine of frustration did not apply because the lease did not require the tenant to operate a retail store, the disruptions were temporary, and the force majeure clause demonstrated the parties had contemplated such circumstances.

Summary judgment was granted in favour of the landlord.

This decision addresses the costs award following an application where the parties had mixed success.

The court found the Applicants were the more successful parties overall, despite the Respondent's partial success in confirming his tenants' right to use a right of way.

The court determined that the Respondent's unreasonable conduct, including installing a dock and cameras and interfering with the Applicants' property, necessitated the litigation.

Considering the nature and complexity of the case, the parties' conduct, and the remedies obtained, the court awarded the Applicants $25,000 in partial indemnity costs, inclusive of HST and disbursements, under Rule 57.01(1) of the Rules of Civil Procedure and the Courts of Justice Act.

The applicants, waterfront property owners, sought to restrict the respondent's use of a deeded right-of-way (ROW) over their land, arguing against its "commercialization" by the respondent's AirBnB tenants and the installation of a dock and surveillance cameras.

The respondent, owning a landlocked abutting property, contended his tenants were invitees entitled to use the ROW and that the dock was for safety.

The court ruled that the respondent's tenants could use the ROW as invitees, finding this a reasonable use of cottage property.

However, the court determined that the installation of a dock and cameras, and general trespass, were unreasonable expansions of the easement not necessary for water access.