Paul D. Amey

Following a successful appeal by the Estate that dismissed the respondent's constructive trust action, the parties made submissions on the costs of the trial.

The Estate sought costs on a partial or substantial indemnity scale.

The respondent argued she was impecunious and noted the trial judge's undisturbed finding that the deceased intended to benefit her.

The Court of Appeal exercised its discretion to make no costs award for the trial, citing the respondent's financial position and the deceased's unfulfilled but legally unenforceable promise.

The plaintiff and the deceased cohabited for 23 months before the deceased's sudden death.

The deceased had promised to transfer his RRSPs to the plaintiff if they were still living together, but died before changing his will or signing a cohabitation agreement.

The trial judge awarded the plaintiff $1,750,000 based on a constructive trust arising from unjust enrichment.

The Court of Appeal allowed the estate's appeal, finding no unjust enrichment because the benefits the plaintiff received outweighed her contributions.

The court also held that a constructive trust was inappropriate as monetary damages would have sufficed and there was no link between her contributions and the RRSPs.

The parties were involved in an optometry practice that dissolved following the death of one of the partners.

After a 29-day trial, the trial judge found that an 'income partnership' existed, awarded damages for defamation, and made a no costs order.

Both parties appealed.

The Court of Appeal dismissed the appeal and cross-appeal, finding no error in the trial judge's conclusions regarding the nature of the partnership, the defamation findings, or the costs order.

The appellants appealed a decision regarding the validity of a Township fence bylaw, arguing it conflicted with the Region's zoning bylaw and therefore could not restrain the height of their fence.

The Court of Appeal found no conflict, noting the lands were zoned 'lakeshore' rather than 'residential', and the zoning bylaw's provisions on accessory uses explicitly excluded boundary fences.

The appeal was dismissed with costs awarded to the respondents.

The respondent wife was substantially successful on appeal and sought costs on a substantial indemnity basis.

The Court of Appeal held that substantial success alone does not warrant substantial indemnity costs.

Taking into account the different degrees of success, the court awarded the respondent costs of $15,000 on a partial indemnity basis.

The appellant appealed a motion judge's order continuing spousal support at $3,500 per month, refusing to rescind arrears, awarding a $10,000 lump sum, and ordering 10% of future bonuses to the respondent.

The Court of Appeal upheld the monthly support and the refusal to rescind arrears, finding no error in the motion judge's assessment of the significant disparity in the parties' standards of living.

However, the Court allowed the appeal regarding the lump sum, finding no unusual circumstances to justify it, and struck the 10% bonus provision as it constituted double-counting since bonuses were already factored into the monthly support amount.

The appellants and respondents owned cottage properties on Lake Erie.

The trial judge found the appellants had acquired prescriptive easements for parking and a pier on the respondents' land, but applied equitable proprietary estoppel to impose annual licence fees.

The Court of Appeal held the trial judge erred in applying the equitable doctrine without a finding of unconscionability, setting aside the licence fees.

The Court dismissed the respondents' cross-appeal, upholding the findings that parking was reasonably necessary for the enjoyment of the dominant tenements, and that proprietary estoppel was established for a well and concrete blocks.

The mother, who had primary residence of the children under a joint custody agreement, appealed a motions judge's order refusing to permit her to relocate with the children from Delhi to Tecumseh for new employment.

The Court of Appeal allowed the appeal, finding the motions judge erred in principle by failing to give sufficient consideration to the custodial parent's views, the children's wishes, and the enhancement of the mother's ability to care for the children, as required by Gordon v. Goertz.

The mother was permitted to move, with an order to share travel for the father's access.

The appellant appealed a summary judgment order that required payment of the judgment amount into court as a condition for a stay of execution pending trial on its counterclaim.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the doctrine of equitable set-off did not apply, as the claims arose over different time-frames and did not go to the root of the claim.

The Court also found no basis to interfere with the motion judge's discretionary order under Rule 20.05(3) imposing terms on the counterclaim, given the appellant's admission of the debt and lack of assets in the jurisdiction.

The appellant appealed a summary judgment order granting the respondent $378,270.98 and requiring the appellant to pay the judgment amount into court to obtain a stay of execution pending trial on its counterclaim.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the doctrine of equitable set-off did not apply, as the claims arose over different time-frames and did not go to the root of the claim.

The Court also found no basis to interfere with the discretionary order requiring payment into court as a condition for a stay of execution.

The appellant submitted the lowest acceptable bid in response to a Request for Proposals for a computer cabling project.

Due to a budget reduction, the respondent school board negotiated with the three lowest bidders instead of solely with the appellant, ultimately awarding the contract to another bidder.

The appellant sued for breach of the duty of fairness and good faith.

The trial judge dismissed the action, finding the board was permitted to conduct wider negotiations and that any differing treatment during negotiations did not affect the outcome.

The Court of Appeal upheld the trial judge's decision and dismissed the appeal.

In supplementary reasons regarding costs, the Court of Appeal considered offers to settle made by both parties.

Despite the appellant's success on the appeal, the court ordered no costs of the appeal because the respondent's offer to settle was almost identical to the appeal result.

For the application, considering the appellant's misconduct and the various offers, the court ordered no costs to either party up to November 1, 1999, and party-and-party costs to the respondent thereafter.

The appellant appealed a trial judgment regarding an equalization payment.

The Court of Appeal found that the trial judge failed to follow the steps provided in the Family Law Act and made unclear findings of fact regarding a constructive trust, pension valuation, and a property gift.

The appeal was allowed, the judgment was set aside, and a new trial was directed.

The insured permitted an unlicensed driver to operate a vehicle he had control over, resulting in a motor vehicle accident.

The injured party's insurer brought a third-party claim against the insured for negligent entrustment.

The insured sought a declaration that his homeowner's insurance policy covered the claim and obliged the insurer to defend him.

The Court of Appeal held that the insured's act of permitting another to drive constituted 'use' of the vehicle, which fell squarely within the policy's exclusion for claims arising from the ownership, use, or operation of a motorized vehicle.

The insurer had no duty to defend.

The applicant sought leave to appeal to the Supreme Court of Canada on the effect of s. 11 of The Public Authorities Protection Act.

The Ontario Court of Appeal had previously refused leave to appeal on this specific issue from the judgment of the Ontario Divisional Court.

Applying the principle from Ernewein, the Supreme Court held that it will not entertain an application for leave to appeal from the refusal of an intermediate appellate court to grant leave to appeal to it.

The application for leave to appeal was dismissed without costs.