Paul Antonius Gemmink

The applicant, Giuseppe Campo, as Estate Trustee and in his personal capacity, brought an application alleging that the respondent, Melinda Longo, breached her fiduciary duties as Maria Campo's attorney for property and unjustly enriched herself.

The applicant sought orders compelling the respondent to pass her accounts, declaring certain joint bank accounts and a TFSA as estate assets, and invalidating the TFSA beneficiary designation due to Maria's incapacity and the respondent's undue influence.

The respondent conceded the joint accounts were estate assets but disputed the TFSA and the requirement to pass accounts.

The court granted all orders sought by the applicant, finding suspicious circumstances regarding the TFSA designation and compelling the respondent to account for her actions as attorney for property.

The appellants appealed the dismissal of their claim for adverse possession of a strip of land between two residences in Toronto.

The application judge found that the appellants failed to meet their onus to establish adverse possession.

The Court of Appeal upheld the decision, finding that the application judge's factual findings were supported by the evidence, particularly that the predecessor in title recognized the respondents' ownership and did not intend to exclude them from the disputed land.

The appellant appealed a decision by the motion judge upholding a default payment of $60,000 in a settlement agreement, arguing it was unconscionable.

The Court of Appeal found no error in the motion judge's thorough analysis and conclusion that the default payment was reasonable in the circumstances.

The appeal was dismissed with costs awarded to the respondent.

The plaintiff brought a motion for summary judgment to enforce a settlement agreement against the defendant.

The agreement required the defendant to pay $30,000, failing which he would consent to judgment for liquidated damages of $60,000.

The defendant paid $10,000 but failed to pay the balance.

The court found that the liquidated damages clause was not an unenforceable penalty clause, as the amount was not extravagant or unconscionable compared to the original $200,000 claim.

The court granted summary judgment, holding the defendant liable for $60,000.

The plaintiff vendor brought a motion for partial summary judgment regarding a failed real estate transaction.

The defendant purchaser had demanded the return of his $60,000 deposit, alleging the vendor misrepresented the lot size based on an MPAC profile.

The vendor provided a registered survey confirming the lot size matched the Agreement of Purchase and Sale and accepted the purchaser's demand as an anticipatory breach.

The court found the lot size was correctly stated, the purchaser's conduct constituted an anticipatory breach, and ordered the $60,000 deposit forfeited to the vendor.

A homebuilder appealed the dismissal of its action against its Commercial General Liability insurer for a declaration of duty to defend and indemnify in relation to a claim by homeowners.

The homeowners had purchased a lot and home where the property grading exceeded municipal standards.

The builder failed to include a required warning in the purchase agreement.

The motion judge dismissed the action, finding no coverage under the CGL policy.

The Court of Appeal upheld the dismissal, finding that the claims were either based on intentional conduct or were clearly excluded under the policy's exclusion clauses, particularly those relating to property damage arising from defects in the builder's work and failure to provide warnings.

This endorsement addresses the costs arising from a successful summary judgment motion brought by the defendant, Lombard General Insurance Company of Canada, against the plaintiff, Mason Homes Limited.

Lombard sought partial indemnity costs of $13,269.09.

The court found the requested costs to be proportionate and reasonable, considering the scope of the claims and the utility of Lombard's motion materials.

Applying the principles of proportionality, reasonable expectations, and Rule 57.01 of the Rules of Civil Procedure, the court awarded Lombard its full requested costs.

The appellant appealed a decision enforcing a settlement between the parties.

He argued the motion judge erred by ignoring an alleged fraud against a third party, a payment issue, and the respondent's early departure from the home.

The Divisional Court dismissed the appeal, finding the motion judge correctly exercised her discretion, properly credited the appellant for payments made, and correctly interpreted the settlement terms regarding the home.

The court also found the motion judge's reasons were adequate.

The appellant purchased rims and tires for his vehicle, financed by the respondent.

The respondent registered a non-possessory lien under the Repair and Storage Liens Act (RSLA) and attempted to seize the vehicle when the appellant defaulted.

The application judge declared the respondent was entitled to the lien.

On appeal, the Court of Appeal found that the vendor never possessed or repaired the vehicle, meaning no possessory lien arose that could be converted to a non-possessory lien or assigned to the respondent.

The court also held that RSLA liens arise by statute, not contract, and the deemed possession provision in s. 3(4) did not apply.

The appeal was allowed and the lien declared invalid.

The appellant landlord appealed the dismissal of its action for unpaid rent against the respondent commercial tenants.

The trial judge had dismissed the action on the basis that the landlord forfeited its right to sue for rent by re-entering the premises before the 15-day statutory period expired under the Commercial Tenancies Act.

The Court of Appeal allowed the appeal in part, finding that the trial judge erred by failing to consider whether the premises had been abandoned, which would allow immediate re-entry without prejudicing the claim for rent.

A trial of an issue was ordered to determine the application of the Act, including the issue of abandonment.

The appellant appealed a decision of the Health Professions Appeal and Review Board confirming the refusal of her application for registration as a Nurse Practitioner.

The appellant had failed the required examination three times and argued the examination was unfair because it was based on American nursing practices.

The Divisional Court dismissed the appeal, finding the Board's decision was reasonable as the appellant provided no evidence to establish the examination was unfair or that she was personally adversely affected by its content.

The representative plaintiff in a proposed class proceeding sought leave to discontinue the action under s. 29(1) of the Class Proceedings Act, 1992.

The claim concerned retiree health benefits allegedly promised to spouses of employees who accepted an early retirement program.

The representative plaintiff ceased to have a personal cause of action after his spouse predeceased him and he was unable to find another class member willing to assume the representative role.

The court held that, given the small class size, lack of interest among potential class members, and the marginal economics of the litigation, discontinuance was appropriate.

Leave to discontinue was granted subject to notice being provided to potential class members.

The plaintiff commercial landlord sought approximately $152,000 in damages representing unpaid rent for the balance of a commercial lease term after the tenants’ deli business closed.

The court found the landlord had changed the locks on the premises before the statutory 15‑day period for unpaid rent expired and without complying with notice requirements under the Commercial Tenancies Act.

The lock change constituted a re‑entry that terminated the lease.

As a result, the landlord forfeited its entitlement to claim future rent for the remaining lease term.

Although mitigation arguments were addressed, they were ultimately unnecessary because the improper termination barred recovery of the claimed damages.

The appellant entered into a 36-month exclusive agency contract with the respondent, which included an early termination clause allowing the respondent to terminate on three months' notice after the 18th month.

The respondent wrongfully repudiated the contract at 16 months.

The trial judge awarded damages based on the full 36-month term less a 25 percent discount, and awarded solicitor-and-client costs due to unfounded allegations of dishonesty.

The Court of Appeal reduced the damages to reflect the early termination clause as the maximum exposure, and reduced the costs to a party-and-party scale.

The Supreme Court of Canada dismissed the appeal on damages, affirming that damages for breach of a contract with alternative modes of performance are assessed based on the mode least burdensome to the defendant.

However, the Court allowed the appeal on costs, restoring the trial judge's award of solicitor-and-client costs.

The appellant wrongfully terminated a 36-month agency contract with the respondent after 15 months.

The contract contained a clause allowing the appellant to terminate on three months' notice after the 18th month.

The trial judge awarded damages based on the full 36-month term discounted by 25 percent for the likelihood of early termination.

The Court of Appeal allowed the appeal, holding that the early termination clause defined the upper limit of the appellant's liability for damages, and reduced the damages to reflect a 22-month period.

The appellant appealed a trial judge's decision regarding municipal liability for a parking lot.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the municipality's act of clearing snow from a sidewalk was not a corporate act sufficient to demonstrate a clear and unequivocal intention to assume the entire parking lot for public use.