Patrick Gerald Duffy

The Plaintiff, Wonderland Power Centre Inc., initiated an action against Post and Beam on Wonderland Inc. concerning a restrictive covenant on land previously sold by Wonderland's predecessor to the London Public Library Board.

Wonderland sought an injunction, a declaration that the covenant was binding, and rectification of the land register if it was unenforceable.

Post and Beam sought summary judgment dismissing the action and a declaration that the covenant was unenforceable.

The court found the registered restrictive covenant unenforceable due to its failure to identify the benefiting lands as required by the Land Titles Act.

However, the court granted Wonderland's request for rectification of the register, noting Post and Beam's actual notice of the intended restriction.

Wonderland's motion for an interim injunction was dismissed due to a lack of irreparable harm, and Post and Beam's motion for summary judgment was dismissed, with remaining claims for a permanent injunction and damages to proceed to trial.

The defendants, North American (Park Place) Corporation and North American (Park Place East) Corporation, brought a motion under s. 47(1) of the Construction Lien Act to dismiss the plaintiff M. Fuda Contracting Inc.'s construction lien action for delay and release the remaining security.

The court considered the four-year delay, the complexity of the case, the plaintiff's explanation, and the prejudice to the defendants.

While acknowledging the plaintiff's delay exceeded the presumptive two-year ceiling for lien actions, the court found the delay was partially explained by the case's complexity and a document dispute.

The prejudice to the defendants was attenuated by significant reductions in security and the existence of a companion slander of title action.

The motion to dismiss was denied, but the plaintiff was given a "last chance opportunity" to have the matter on the ready trial list by spring 2019, serve expert reports, and arrange a settlement conference by year-end.

The applicant, Icona Hospitality Inc., sought an order under s. 61(1) of the Conveyancing and Law of Property Act to delete restrictive covenants from the title to its land.

The covenants restricted the site's use solely to a hotel.

Icona proposed a mixed-use high-rise redevelopment, arguing the covenants were spent or unsuitable due to changed planning policies and the area's designation as an Urban Growth Centre.

The respondents, beneficiaries of the covenants, opposed the application, citing potential negative impacts on their own development plans and market competition.

The court dismissed the application, finding that Icona failed to demonstrate that the covenants were spent or so unsuitable as to be of no value, or that their assertion by the respondents would be vexatious.

The court emphasized that the jurisdiction under s. 61(1) must be exercised with caution and an order will seldom be granted if prejudicial to the adjacent landowner, rejecting a simple balancing of monetary interests.

The Alliance to Protect Prince Edward County (APPEC) sought a declaration that a Feed-In-Tariff (FIT) Contract between the Independent Electricity System Operator (IESO) and WPD White Pines Wind Incorporated (White Pines) was null and void, arguing White Pines failed to meet contractual capacity requirements.

APPEC also raised issues of legitimate expectations and negligent misrepresentation by IESO.

The court dismissed APPEC's application, finding that the doctrine of legitimate expectations did not apply as it creates procedural, not substantive, rights, and APPEC was not a party to the contract.

Furthermore, no special relationship existed to support a claim of negligent misrepresentation, and IESO and White Pines properly amended their contract in accordance with the FIT Rules and the Environmental Review Tribunal's decision.

The applicant sought a stay of a Renewable Energy Approval pending a motion for leave to appeal from a Divisional Court order dismissing its application for judicial review.

The Divisional Court had found that the Ministry's letter regarding construction compliance was not a reviewable statutory power of decision, and that the applicant was attempting to disguise a challenge to the REA itself.

The Court of Appeal addressed the jurisdictional question of whether the Divisional Court's decision could be reviewed by the Court of Appeal or only by a panel of the Divisional Court under section 21(5) of the Courts of Justice Act.

The Court held that the panel review process applies and that the applicant must exhaust the Divisional Court's remedial jurisdiction before appealing to the Court of Appeal.

The appellants (tenant and its successor) repudiated a commercial lease for an industrial property owned by the respondent.

The respondent was forced to sell the property and sued for damages.

The trial judge awarded $1,277,000 in damages, including lost rental profits and lost capital appreciation.

The appellants appealed, arguing the sale at fair market value fully mitigated damages and that lost capital appreciation was too remote.

The Court of Appeal allowed the appeal, finding that damages for lost capital appreciation were too remote under the Hadley v. Baxendale test, that the property was sold at fair market value, and that damages should be calculated using a discounted cash flow analysis based on the 2013 sale price with appropriate deductions for mitigation.

This endorsement addresses the costs of an action where the plaintiff, Saramia Crescent General Partner Ltd., was awarded $1,277,000 in damages for breach of lease.

The court determined that the plaintiff was entitled to costs on a partial indemnity scale up to November 8, 2016, and on a substantial indemnity scale thereafter, having beaten two offers to settle.

The defendants' arguments that the costs were excessive, that the issues were novel justifying a reduction, or that mediation costs should be excluded were largely rejected.

A minor reduction was made for communications costs.

The court also drew an adverse inference against the defendants for failing to disclose their own costs.

Following a successful application involving a claim for adverse possession, the court determined the appropriate quantum of costs payable by the respondent.

Although the applicant was entitled to costs, the court found the bill of costs claimed on a partial indemnity basis to be excessive.

The court noted that much of the legal work predated the applicant’s property ownership and would have been incurred regardless of opposition, and that the respondent—who was self‑represented—acted reasonably and did not materially increase the applicant’s costs.

The court also criticized the involvement of numerous legal staff and duplication of work.

Costs were fixed at $10,000 all inclusive.

The court dismissed both an application to set aside and an appeal from an accounting arbitration under an asset purchase agreement.

The moving party argued the arbitrator exceeded jurisdiction and made manifest errors by quantifying deferred-revenue adjustments without independent expert evidence.

The court held the arbitration agreement and engagement letter authorized determination and quantification of disputed deferred-revenue items, and that the award reflected a factually grounded analysis of known costs and contingency risk allocations.

The high threshold for court intervention was not met.