Paul A. Johnson

The plaintiff brought a motion for summary judgment to recover the balance outstanding under a mortgage and possession of the mortgaged property.

The court dismissed the motion, finding that neither the renewal of the first mortgage nor the transfer of shares constituted a default under the loan agreement or third mortgage.

The court also determined the correct outstanding mortgage amount and declared the plaintiff's notice of sale void due to an incorrect amount claimed.

The applicant challenged the validity of a codicil to her mother's will, alleging lack of testamentary capacity due to dementia, and sought accountings under a Power of Attorney and for estate assets.

The court found the applicant failed to meet the onus of proving lack of capacity for the codicil, noting medical evidence did not support severe impairment at the time of execution.

The Power of Attorney accounting was deemed satisfied by a prior order, and further estate accounting was deemed disproportionate given the modest estate value.

The application was dismissed.

The defendant estate trustee brought a motion to dismiss the plaintiff's action challenging the deceased's will for delay.

The plaintiff, the deceased's separated spouse, commenced the action in 2013 but took few steps to advance it.

The plaintiff conceded the deceased's capacity but maintained his challenge based on undue influence.

The court declined to dismiss the action, finding the delay was explained by the plaintiff's advanced age and the COVID-19 pandemic, and that a fair trial was still possible.

The court ordered the matter set down for trial.

Four tenants of cottage sites owned by Grant Lake Forest Resources Ltd. challenged significant rent increases imposed when their original tenancy agreements expired and were replaced with new agreements.

The landlord did not provide the required 90-day notice of rent increase under the Residential Tenancies Act, 2006.

The Landlord and Tenant Board found the increases void and ordered repayment of excess rent.

The Divisional Court upheld this decision.

On appeal, the landlord argued that the new tenancy agreements constituted a new term of tenancy, exempting the increases from the notice requirements.

The Court of Appeal rejected this argument, holding that the notice provisions apply regardless of whether a new agreement is executed, as long as the parties and premises remain the same.

The plaintiff brought a motion for summary judgment seeking declarations and specific performance relating to an easement agreement over the defendant’s lands.

After reasons were released, the parties were unable to settle the order because the reasons did not explicitly address the plaintiff’s request to amend the statement of claim.

The court held it retained jurisdiction to clarify or amend its reasons before judgment was entered, including under Rule 59.06 of the Rules of Civil Procedure.

The court concluded that the earlier reasons implicitly granted the requested amendments and that no prejudice or limitation issue arose from the amendments.

An addendum was issued confirming that the amendments to the pleadings were granted.

Following summary judgment in a dispute over an easement and related counterclaim, the court determined the appropriate costs award.

The plaintiff had been entirely successful in obtaining a declaration of a binding easement agreement, a vesting order, leave to amend its claim, and dismissal of the defendant’s counterclaim seeking transfer of land or damages.

The plaintiff sought substantial indemnity costs on the basis that the defendant’s conduct was reprehensible.

While the court found the defendant’s conduct deserving of criticism, it concluded the threshold for substantial indemnity costs was not met.

Costs were therefore awarded on a partial indemnity basis, with additional substantial indemnity costs for costs thrown away due to an adjournment requested by the defendant.

The applicant sought summary judgment declaring that a written “Easement Summary” constituted a binding agreement requiring the respondent to grant an access easement over neighbouring lands.

The dispute arose from negotiations concerning road access to landlocked lakeside properties and a related understanding that the applicant would attempt to obtain severance of a waterfront lot for the respondent.

The court held that both the easement summary and severance summary were binding preliminary agreements, but that the severance agreement only required the applicant to use best efforts to obtain approval and did not guarantee a lot or monetary compensation if severance failed.

The court concluded that the easement agreement was independent of the severance process and that the respondent breached the agreement by refusing to complete the easement.

Summary judgment was granted declaring the easement binding, vesting the easement in favour of the applicant, and dismissing the respondent’s counterclaim.