Paul Ingrassia

The appellants appealed the dismissal of their contempt motion against the respondents for breach of a 2012 judgment.

The 2012 judgment had found that the respondents interfered with water drainage from the appellants' property by damaging a drainage pipe, changing the slope of their driveway, and installing a rubber dam.

The respondents were ordered to restore the flow of water within three months.

The motion judge dismissed the contempt motion, finding that the respondents had complied by replacing the damaged pipe.

The Court of Appeal allowed the appeal, finding that the motion judge misinterpreted the 2012 judgment, misapprehended the expert evidence, and misapplied the test for civil contempt.

The court ordered the respondents to implement the necessary steps to restore water flow as recommended by the appellants' expert, including installation of two 250mm diameter pipes and removal of the rubber dam.

The court considered a motion by Losani Homes (1998) Limited for the partial discharge of a vendor-take-back mortgage over a single subdivided lot (Lot 002) on a development property, pending the outcome of a broader application regarding the parties’ rights and obligations over a parcel known as the Heinbuch land.

The court declined to grant the interim relief, finding no contractual, statutory, or equitable entitlement to a partial discharge, and emphasized the need for the main application to proceed expeditiously.

This endorsement from a case conference addresses the plaintiff's repeated attempts to delay the hearing of defendant Kaplan's motion to dismiss and to link it with other potential motions for default judgment or summary judgment.

The court denied the plaintiff's requests for further deferral and linking, emphasizing that Kaplan's motion had been delayed long enough.

The court also clarified that motions are not heard by a jury, particularly for equitable remedies like oppression claims under the OBCA.

Finally, the court ordered the plaintiff to forthwith pay outstanding costs previously awarded to Kaplan.

The moving party brought a motion for leave to appeal an order dated October 12, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000 all inclusive.

The defendant, Ira Greenspoon, brought a motion to set aside a noting in default that was requisitioned on April 15, 2019, in an action initiated in 2004.

Mr. Greenspoon's defence had been struck in 2016 for non-compliance with court orders.

Despite a six-year delay in bringing the motion, the court considered the complexity and long-running nature of the case, Mr. Greenspoon's mistaken belief that the trial would resolve claims against him, and an alleged verbal assurance from the plaintiff's principal.

Applying the criteria for setting aside default under Rule 19.03(1), the court found that denying the motion would cause significant prejudice to Mr. Greenspoon, given his assertion of being a "placeholder" director with no actual involvement in the corporate affairs.

The court granted the motion, setting aside the default noting and reinstating Mr. Greenspoon's Statement of Defence, emphasizing the preference for resolving disputes on their merits.

No costs were awarded as neither party provided cost outlines.

The appellant sought to overturn an application judge's order enforcing a settlement agreement concerning estate matters, including jointly held bank accounts.

The Court of Appeal applied a two-step test to determine if an agreement to settle existed and if it should be enforced.

The court found no palpable and overriding error in the application judge's finding that a clear, unequivocal, and unambiguous settlement had been reached and should be enforced.

The appeal was dismissed, and costs were awarded to the respondent.

The plaintiff sued the defendants for breach of contract, claiming a management fee for supervising a construction project at the defendants' home.

The defendants moved for an order requiring the plaintiff to serve a further and better affidavit of documents, seeking timesheets, invoices, and communications related to the project and other properties.

The court granted the motion, finding the requested documents relevant to determining the actual project cost, the adequacy of the plaintiff's management, and the quantum meruit claim.

The court also held that ordering disclosure was proportionate to the issues and amount involved.

The applicant brought a motion for leave to appeal an order of the Assessment Review Board.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the respondent Municipal Property Assessment Corporation in the fixed amount of $2,500.

A tenant operating a bakery and café sought to terminate its commercial lease and obtain damages following the landlord's failure to repair the HVAC system.

The application judge found the landlord had breached its lease obligations and ordered termination with a trial on damages.

The landlord appealed, arguing procedural unfairness and misinterpretation of the lease.

The Court of Appeal upheld the substantive findings but set aside the award of substantial indemnity costs, finding the application judge erred in excluding the landlord's supplementary affidavit while admitting the tenant's supplementary affidavit without proper consideration of the applicable rules.