Michael D. Swindley

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.

The respondent husband brought a motion to change seeking to reduce and eventually terminate his spousal support obligations to the applicant wife.

He argued that his retirement, deteriorating health, the wife's remarriage, and her alleged self-sufficiency constituted material changes in circumstances.

The court found that the husband's retirement was followed by similar employment, his health did not prevent him from working, and the wife's failure to find sustainable employment was reasonable given her long-standing mental health issues.

The court concluded that the husband failed to establish a material change in circumstances and dismissed the motion to change.

This costs endorsement arose from a motion to change initiated by the respondent father seeking specified in-person access to his child.

The applicant mother opposed the motion and sought adjustments to child support.

Following recommendations from the Office of the Children's Lawyer for minimal contact, the parties settled all substantive issues via a consent order, which provided for electronic communication only and did not grant the father his requested in-person access.

The court found the applicant mother to be the substantially successful party, noting the respondent's unreasonable conduct, including delays in financial disclosure, quitting a high-paying job, and relocating to Morocco, which impacted the mother's ability to pursue increased child support.

Despite the settlement, the court determined that costs were appropriate where success could be clearly ascertained.

The court awarded the applicant partial indemnity costs.

The appellant appealed a motion judge's decision to impute an annual income of $130,000 to him for the purpose of calculating spousal support.

The appellant argued the motion judge erred by relying solely on previous earnings.

The Divisional Court dismissed the appeal, finding the motion judge considered multiple factors including age, education, skills, and local job market rates.

The court also dismissed a motion to introduce fresh evidence of the appellant's post-hearing employment, noting the proper procedure for changed circumstances is a new motion to change.

The applicant father brought a motion to change an amending agreement to terminate child support for two adult children.

The respondent mother brought a cross-motion to change the agreement to increase support based on the father's increased income and changes in the children's living arrangements.

The court dismissed the father's request to terminate support, finding that both children remained children of the marriage.

The court ordered the father to pay ongoing child support based on his prior years' incomes, accounting for the children's post-secondary education and living arrangements.

The respondent sought to vary a 2013 spousal support order, requesting a reduction to zero due to alleged unemployment and under-employment.

The applicant opposed, seeking continuation of the existing order based on income imputation.

The court found the respondent intentionally unemployed and under-employed, imputing income at his previous earning capacity of $130,000 per year.

The applicant's income was maintained at $20,000 per year.

The motion to change was granted only to the extent of reinstating spousal support at $3,000 per month plus medical plan costs, effective July 1, 2017, and ordering a replacement life insurance policy.

Homeowners retained a septic system installer to install a system in 2010, which was approved by the health unit.

Problems with smell and effluent began in 2011 and persisted through 2013.

The installer repeatedly assured the homeowners he could fix the problem and made several attempts to do so.

In 2015, the health unit condemned the system and issued a compliance order.

The homeowners sued in August 2015.

The trial judge dismissed the action as statute-barred under the Limitations Act, 2002, finding the claim was discovered by spring 2013.

The Divisional Court upheld this decision.

The Court of Appeal reversed, finding the trial judge failed to properly analyze section 5(1)(a)(iv) of the Limitations Act regarding when a proceeding would be an appropriate remedy.

The court held that the homeowners reasonably relied on the installer's superior knowledge and expertise, and a proceeding was not appropriate until the installer's remedial efforts ceased in winter 2014.

The action was therefore within the two-year limitation period.

Braebury Development Corporation appealed a Small Claims Court decision regarding two issues: the proration of an insurance premium and the validity of a steel audit report used to justify a price reduction in a purchase agreement.

The appeal court dismissed both grounds of appeal.

It found no palpable and overriding error in the trial judge's decision to prorate the insurance premium.

On the steel audit issue, the court affirmed that the "Christmas Steel Report" did not constitute a "thorough audit" as required by the purchase agreement, and therefore, Braebury was not entitled to the claimed price reduction.

The plaintiff, Leon Filbey, brought an action against his ex-wife, Tania Ashe (a financial advisor), her company, Sun Life, and their children, alleging issues with irrevocable beneficiary designations on life insurance policies, negligence, breach of fiduciary duty, misrepresentation, and breach of privacy.

The defendants moved for summary judgment, arguing that the claims were statute-barred or untenable.

The court found that claims related to the irrevocable beneficiary designations and earlier acts of negligence/breach of duty were statute-barred due to the plaintiff's knowledge of the issues by March 2012, exceeding the two-year limitation period.

For the remaining claims from 2015, the court found no evidence of damage for negligence/breach of duty and determined that the breach of privacy claim did not meet the "highly offensive" threshold established in Jones v. Tsige, as Ms. Ashe's actions were largely justified by her role as mother and former advisor to protect the children's trust.

Consequently, the defendants' motions for summary judgment were granted, and the plaintiff's action was dismissed in its entirety.

This case addresses the duration of spousal support in a 17-year traditional marriage where the Applicant sacrificed her career for child-rearing while the Respondent advanced his.

The parties had settled most issues, including equalization and the quantum of spousal support, but disagreed on whether support should have a fixed termination date, be indefinite, or be subject to a review.

The court found the Applicant had a strong entitlement to both compensatory and non-compensatory support due to economic disadvantages from the marriage and ongoing uncertainty in her employment.

Applying the Divorce Act and relevant jurisprudence, the court ordered indefinite spousal support, subject to variation upon a material change in circumstances, declining to impose an automatic termination or review date.

The applicant husband brought a motion to change seeking to terminate his spousal support obligation following his involuntary termination and subsequent retirement.

The respondent wife sought a modest reduction but argued support should continue, suggesting the husband draw on his RRSP capital.

The court found a material change in circumstances and imputed $20,000 in RRSP income to the wife to match the husband's necessary withdrawals, preventing an inequitable depletion of his assets.

Finding the parties had roughly equal assets and the wife had sufficient income capacity, the court terminated spousal support effective December 31, 2017, and ordered the wife to repay $14,355 in overpaid support.

Following a jury trial where the plaintiff was awarded damages for injuries sustained at a speedway, the parties could not agree on the quantum of costs.

The plaintiff sought partial indemnity costs of $269,371, while the defendant proposed $150,000.

The court considered factors including the principle of proportionality, the defendant's unreasonable refusal to mediate, and the plaintiff's extensive use of jury focus groups.

The court adjusted the plaintiff's claimed hourly rates and time spent, but penalized the defendant for refusing to mediate, ultimately fixing costs at $210,000 plus taxes.

Following a trial where the plaintiff cemetery company's action for breach of fiduciary duty was dismissed as statute-barred and the defendants' action for declaratory relief was conceded, the parties sought costs.

The court found that both sides bore responsibility for the protracted and expensive litigation, which was driven more by a need for vindication than the specific relief sought.

The court concluded that the outcome was essentially a draw and ordered each party to bear its own costs.

The court also declined to order costs against non-party directors and officers of the cemetery company, finding no jurisdiction to do so.

The plaintiff cemetery corporation brought an action against two former trustees, alleging they breached their fiduciary duties by obtaining personal benefits, including discounted grave plots, a family garden, and unbilled landscaping services.

The defendants counterclaimed for declarations validating their acquisitions and for damages.

The court found that while the defendants had breached their fiduciary duties by failing to disclose the irregular transactions to the board, the plaintiff's claims were statute-barred under the Limitations Act, 2002, as the board knew or ought to have known of the claims more than two years before commencing the action.

The plaintiff's action was dismissed, the defendants' request for declaratory relief was granted on consent, and the defendants' claims for punitive and aggravated damages were dismissed.

Following the settlement of a family law application regarding custody and mobility, the respondent sought costs on the basis that he was the successful party and had made an informal offer to settle.

The applicant opposed the costs claim, arguing she had proposed a private assessment early on and voluntarily agreed to pay child support.

The court found that neither party could be declared a clear winner and that the respondent's informal offer did not meet the strict requirements of Rule 18.

To encourage the judicious settlement of family disputes, the court ordered that each party bear their own costs.

The applicant, Jesse Bonello, charged with robbery and related offences, sought disclosure of police occurrence reports relating to the principal Crown witnesses, Tyrone Saunders and Lauren Smith, under *Stinchcombe* and, alternatively, via an *O'Connor* application.

The Crown argued the records were not in its possession and thus not subject to *Stinchcombe* disclosure.

The court found that the occurrence reports were not "fruits of the investigation" and therefore not subject to *Stinchcombe* disclosure.

Applying the *O'Connor* principles, the court determined that the applicant met the "likely relevance" threshold for Tyrone Saunders' records due to his extensive criminal record and expected credibility issues, ordering a review of those sealed documents.

However, the application for Lauren Smith's records was dismissed as a "fishing expedition" due to the absence of a criminal record or case-specific evidence demonstrating likely relevance.

The applicants sought to clarify a registered Right of Way over the respondents' property, which the respondents contended was limited to winter use.

The court found that the original grant of Right of Way was unambiguous and unrestricted.

A subsequent "Notice of Right of Way" signed only by the grantor and lacking mutual consideration, did not legally limit the Right of Way's use to winter months.

The application was granted, confirming the applicants' right to year-round, uninterrupted ingress and egress, and an injunction was issued against obstruction.

The plaintiffs, Reginald and Linda Cyr, sought leave to amend their statement of claim on the sixth day of a simplified rules trial to add claims for punitive and aggravated damages.

The defendant, The Cataraqui Cemetery Company, opposed the motion, arguing the amendments were statute-barred by the Limitations Act, 2002, as the underlying facts were known years prior.

The court granted leave, finding that the proposed amendments were elaborations on facts already pleaded and did not fundamentally alter the nature of the action or cause uncompensable prejudice to the defendant.