Natalie C. Kuehn

The court granted the defendants' motion to discharge a construction lien registered by the plaintiff, Skyway Canada Limited, after the plaintiff failed to attend and participate in cross-examination on the claim for lien as required by section 40 of the Construction Act.

The plaintiff's request for an adjournment was denied, and the court found that the plaintiff's conduct in failing to communicate and participate justified the discharge of the lien.

Costs were awarded to the defendants.

The Court of Appeal for Ontario heard an appeal concerning a "Lender Fee" in a multimillion-dollar loan agreement.

The motion judge had ruled that the balance of the fee was an unenforceable penalty clause and granted relief against forfeiture, also suggesting it was not earned as the loan was not advanced.

The Court of Appeal reversed this decision, holding that the Lender Fee was consideration for obtaining the loan commitment, not a stipulated remedy for breach, and therefore the doctrines of unenforceable penalty clauses and relief against forfeiture did not apply.

The court further clarified that the fee was not contingent on the loan being advanced based on the contract's terms.

The appeal was allowed, ordering the balance of the fee to be paid to the lender.

The applicant, a mortgagee, sought judgment against the mortgagor for default and vacant possession of the mortgaged property.

While the mortgagor did not oppose the judgment and had vacated, a second respondent, Thomas Mullen, opposed the vacant possession order, asserting he was a residential tenant of a portion of the property under a "lease with option to purchase" agreement.

The court found that the agreement constituted a lease, as the condition for purchase (severance of the lot) was never met.

The court further determined that Mullen's occupation of the property, including a trailer and a Quonset hut used as a permanent residence for most of the year, qualified as a "residential complex" and "rental unit" under the Residential Tenancies Act.

Consequently, the applicant, as a mortgagee in possession, was deemed a landlord and was required to seek possession through the Landlord and Tenant Board, not the Superior Court.

The court granted judgment against the mortgagor for the outstanding debt but dismissed the application for vacant possession against Mullen due to lack of jurisdiction.

Ricci Abram, convicted of first-degree murder in 2005, applied for a "faint hope" hearing under s. 745.61 of the Criminal Code to reduce his parole ineligibility period.

The application required judicial screening for merit.

The court, applying the "reasonable prospect of success" standard due to Charter considerations (R. v. Dell), found that the applicant had demonstrated dramatic rehabilitative efforts, strong institutional support, and a deep connection to indigenous traditions.

Despite the brutal nature of the original offence and victim impact, the court balanced these factors with the applicant's significant personal growth and the relevance of Gladue principles.

The application for a jury hearing was granted.