Patrick T. Summers

The appellants appealed an order refusing to allow them to withdraw an admission in their affidavits that the respondents had a right-of-way over the subject lands.

The appellants argued they recently discovered a break in the chain of title.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that permitting the withdrawal would prejudice the respondents by allowing the damages issue to be determined on a different basis than the liability issue.

The plaintiff drywall contractor brought a construction lien action against the defendant homeowner for unpaid work and extras on a custom home project.

The parties disputed the contract price, whether certain work constituted extras, alleged cash payments, and back-charges for incomplete work and mold remediation.

The court found the defendant fundamentally breached the contract by failing to pay and denying the plaintiff access to the site.

The court awarded the plaintiff $78,262.50 plus partial GST, allowing some claims for extras while crediting the defendant for incomplete work, and dismissed the defendant's claims regarding cash payments and mold remediation.

Following a seven‑day trial involving enforcement of a vendor‑take‑back mortgage, promissory note, and guarantees relating to the sale of a gasoline station, the successful lender sought costs on a full indemnity basis relying on contractual provisions and alternatively substantial indemnity costs after an offer to settle.

The defendants conceded that costs should be awarded but disputed the scale and quantum.

The court held that although the plaintiff was largely successful, the defendants achieved limited success on an issue that reduced the principal judgment by $80,000.

The court further held that the plaintiff’s offer to settle was an “escalating offer” that did not trigger Rule 49.10 cost consequences.

Partial indemnity costs were awarded and fixed globally in an amount reflecting the mixed success of the parties.

Following a four‑day trial under the Simplified Rules in which the action was dismissed, the defendant sought substantial indemnity costs relying on a Rule 49 offer to settle.

The plaintiff argued that no costs should be ordered or that costs should be limited to a modest amount due to the nature of simplified procedure and the unsettled state of the law on the facts.

The court accepted that costs in Simplified Rules proceedings are often significantly lower than ordinary trial costs and should be assessed with that expectation in mind.

Considering the Rule 49 offer and the factors in Rule 57, the court fixed the defendant’s costs at a reduced amount inclusive of taxes and disbursements.

The plaintiff sold a gasoline station to the defendants and took back a VTB mortgage and a promissory note.

The defendants stopped making payments, alleging the plaintiff misrepresented the station's financial performance and failed to complete a drive-through as undertaken.

The court found no misrepresentation, as the financial information provided was not materially inaccurate and the defendants waived their due diligence conditions.

However, the court found the plaintiff breached its undertaking to complete the drive-through and awarded the defendants an $80,000 offset against the amounts owing under the VTB mortgage.

The plaintiff was granted judgment for the balance owing and possession of the property.

Following the withdrawal of a summary judgment motion that sought dismissal of an action as statute-barred under the Limitations Act, 2002, the court determined the costs consequences.

During the initial hearing, the court raised the potential applicability of the Real Property Limitations Act to the plaintiff’s claim for a constructive trust interest in land, prompting adjournment.

The moving defendant subsequently abandoned the motion.

Applying Rule 37.09(3) of the Rules of Civil Procedure, the court held that responding parties were entitled to their costs forthwith unless ordered otherwise.

Costs were awarded to the responding parties with reductions to reflect the circumstances and work performed.

The applicants moved for leave to amend their pleadings to withdraw long-standing admissions that the respondent held a right of way across their land.

The admissions had been made in three related proceedings spanning more than a decade and had formed the factual basis of a prior judgment and an endorsement by the Court of Appeal.

The applicants argued a title search revealed the right of way may not have been validly transferred in the chain of title.

Applying the test for withdrawing admissions, the court held the applicants failed to show the admissions were inadvertent and found that allowing withdrawal would cause significant prejudice because earlier court decisions relied on the admitted fact.

Public policy and finality of litigation also weighed against permitting the amendment.

Following a successful summary judgment motion dismissing the plaintiff’s action, the defendant sought costs on a solicitor‑client or substantial indemnity basis relying on a provision in a release.

The plaintiff conceded entitlement to costs but argued that the provision applied only to third‑party proceedings and that the usual partial indemnity scale should apply.

The court held that the release provision did not apply to the litigation and that no misconduct justified elevated costs.

Applying Rule 57.01 factors, the court found the defendant’s partial indemnity claim reasonable and awarded costs accordingly.

A volunteer at a community radio station alleged harassment by another volunteer and sought an injunction requiring the station to enforce its harassment policies, along with damages.

The court considered whether it should intervene in the internal affairs of a private volunteer organization that had not strictly followed its written harassment procedures.

Applying jurisprudence governing judicial oversight of voluntary associations, the court held that internal decision-making in such organizations attracts deference and intervention should be exercised cautiously.

Although the station did not strictly comply with its policies, it acted in good faith, made repeated efforts to resolve the dispute, and substantially complied with the spirit of its procedures.

In the circumstances, judicial intervention was not warranted.

The appellant appealed the dismissal of his action against his mother regarding an alleged contract for land.

He brought a motion seeking a declaration that Rule 63.01 automatically stayed the trial judge's order releasing vendor take back mortgage funds held in trust to the respondent, or alternatively, an order for a stay under Rule 63.02.

The Court of Appeal dismissed the motion, finding that an order for payment out of trust is not an order for the payment of money under Rule 63.01.

The court also declined to order a stay under Rule 63.02, as the appellant failed to establish a serious issue to be tried, irreparable harm, or that the balance of convenience favoured a stay.

A not‑for‑profit campus radio corporation sought a winding‑up order under the Winding Up and Restructuring Act after losing its broadcast licence, premises, and funding.

The opposing party argued the court lacked jurisdiction, that the members’ resolution was invalid because it referred to “dissolution” rather than “winding up,” and that potential derivative claims should proceed.

The court held that the distinction between “dissolve” and “wind up” was immaterial in the circumstances and that the corporation had no meaningful assets or operational purpose.

The court rejected the argument that speculative derivative claims justified preserving the corporation’s existence.

A winding‑up order was granted and the opposition dismissed.

The plaintiffs sought leave to appeal an interlocutory order that transferred the action's venue from Toronto to Belleville and required the plaintiffs to pay consulting fees into court pursuant to a security agreement.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions on the venue transfer and no reason to doubt the correctness of the motions judge's application of section 67 of the Personal Property Security Act.

The court held that the proposed appeal did not involve matters of public importance.

The appellant appealed a trial judgment regarding compensation for services related to ATM machines, interest on loans, and the application of the Partnership Act.

The appellant also brought a motion to introduce fresh evidence consisting of a sentencing hearing transcript of a fact witness.

The Court of Appeal dismissed the motion, finding the fresh evidence would not affect the trial judge's conclusions.

The appeal was also dismissed, as the court found no misapprehension of evidence and ample support for the trial judge's findings on compensation, interest, and partnership.

The appellant sought to review and set aside an order requiring him to post $40,000 as security for costs to proceed with his appeal.

The motion judge had ordered security under rule 61.06(1)(a) on the basis that the appeal was frivolous and vexatious and the appellant lacked sufficient assets in Ontario.

The Court of Appeal set aside the order, finding that the respondent failed to meet the onus of demonstrating the appellant had insufficient assets, as the evidence relied upon related to past cash flow issues rather than current asset ownership.

A dissenting judge would have upheld the order.

The appellant appealed a trial judgment declaring his long-term disability insurance policy void for material non-disclosure.

On his insurance application, the appellant failed to disclose past medical complaints regarding his back and hip.

He subsequently became disabled from acute meningitis and sought benefits.

The Court of Appeal upheld the trial judge's finding that the omitted information was material, as it would have caused the insurer to issue the policy with exclusions for back and hip ailments.

The appeal was dismissed.

The appellant appealed a judgment finding it had trespassed by appropriating 210 square metres of the respondents' land to construct a berm for a Tim Hortons.

The trial judge ordered an injunction to remove the encroachment and directed a trial on damages.

The Court of Appeal dismissed the appeal, finding no error in the trespass finding or the injunction, noting the appellant offered no evidence that removing the encroachment would be oppressive.

The appellant appealed a trial judgment that held it responsible for a back-charge of $64,955.92 for secondary electrical wiring on a construction project, and awarded costs of $93,604.17 to the respondent.

The Court of Appeal upheld the trial judge's interpretation of the designer-built contract, finding the appellant was responsible for the wiring to the disconnect boxes.

The Court also upheld the costs award, noting it was influenced by an unaccepted Rule 49 offer and that both sides spent similar amounts of time on the litigation.

The appeal was dismissed.

The appellant appealed a motion judge's decision staying its action for breach of contract and negligence on the basis of forum non conveniens.

The Court of Appeal upheld the finding that West Virginia, where the respondent processed the steel coils, was the more convenient forum.

However, the Court granted leave to appeal the costs order and reduced the motion judge's costs award from $36,000 to $15,000, finding the original amount unreasonable for a two-hour motion.

The appellant appealed a trial judge's finding that he breached his fiduciary duty to his former employer by accepting a project from a client.

The respondent cross-appealed the calculation of damages.

The Court of Appeal dismissed both the appeal and cross-appeal, finding ample evidence that the appellant used knowledge acquired through his position to successfully bid for the work, and that the damages calculation was fact-driven and entitled to deference.

The appellant appealed a trial judgment that failed to order the return of a converted vehicle or its value.

The trial judge's factual findings were unchallenged, and the respondent did not cross-appeal.

The Divisional Court found that the appellant was entitled to the vehicle's return or its value of $6,500 at the time of conversion.

Since the respondent had sold the vehicle for salvage, the court varied the trial judgment to award the appellant $6,500 plus pre-judgment interest.

Costs of the appeal were awarded to the appellant.