Paul Portman

The defendant/plaintiff by counterclaim brought a motion for summary judgment seeking an order for the sale of a jointly-held cottage under the Partition Act and dismissal of the plaintiff's action.

The plaintiff alleged two oral contracts — one to refrain from selling the cottage before 2033 and another regarding a time-sharing schedule — as well as tortious interference with his use and enjoyment of the property.

The court found the plaintiff's evidence of oral agreements unpersuasive and unsupported, held that no action in nuisance could lie between joint tenants on jointly-held land, and determined that the alleged interferences were trivial.

Summary judgment was granted directing the sale of the cottage, the plaintiff's action was dismissed, and partial indemnity costs of $49,420.35 were awarded to the moving party.

The applicants, three siblings, sought compensation for their claimed interest in a townhouse property (Haig property) purchased by the respondents.

The applicants alleged a verbal agreement to invest equally in the property with the respondents, contributing to downpayment loans, mortgage payments, and carrying costs.

The respondents denied any such agreement, claiming the applicants were tenants paying below-market rent.

The court found a joint investment agreement existed based on extensive evidence including expense tracking spreadsheets, e-transfer records, and testimony.

The court awarded each applicant $155,000 representing their one-fifth interest in the net sale proceeds.

Additionally, the applicant Kiran was awarded non-compensatory spousal support based on need and her chronic medical condition, with retroactive support from October 2021 and ongoing monthly support until September 2032.

The respondent brought a motion seeking an order declaring the applicant, as trustee for a bankrupt individual, and/or the bankrupt individual, to be vexatious litigants requiring leave to commence further court actions.

The respondent also sought dismissal of the applicant's application to enforce a foreign judgment as frivolous, vexatious, or without merit.

The court dismissed the respondent's motion, finding no evidence that the applicant was a vexatious litigant or that the application constituted an abuse of process.

The court emphasized that the applicant, as a court-appointed trustee in bankruptcy, occupied a distinct legal position from the bankrupt individual and that the respondent's arguments regarding the merits of the underlying application were better addressed at the hearing of the application itself.

This costs endorsement follows a judgment in favour of the plaintiff, Halime Khatoun Aghdasi, in a dispute over two properties.

The court found that the defendant, Vahid Mehdizadeh Asiyaban, engaged in reprehensible conduct, including fabricating evidence, and awarded substantial indemnity costs to the plaintiff.

The decision reviews the applicable legal principles for costs, the scale of costs, and the quantum, ultimately awarding the plaintiff $279,495 in fees plus HST and disbursements.

The plaintiff, Lynn Sraha-Yeboah, brought claims against Gregory Jewell and Matthew Jewell for intrusion upon seclusion, alleging that they conducted audio and video surveillance of her in a jointly owned home, including through hidden cameras.

The defendants moved for summary dismissal, relying primarily on a mutual release signed between Lynn and Gregory.

The court found that the release could not bar claims arising from breaches of solicitor-client privilege that occurred during its negotiation, nor could it benefit Matthew, who was not a party to the release.

The court also rejected arguments that Lynn had no reasonable expectation of privacy, that her damages were too remote, and that her claims were barred by estoppel or abuse of process.

The motions for summary judgment were dismissed, and costs were awarded to the plaintiff.

The decision addresses claims for dependant’s support under Part V of the Succession Law Reform Act by Elena Nikitina (alleged common-law spouse) and Rosa Maria Huynh (adult child) against the estate of Cong Hoanh Huynh.

The court found that Ms. Nikitina was not a common-law spouse and thus not entitled to support, but that Rosa was a dependant and entitled to a lump-sum support payment.

The judgment provides a detailed analysis of the legal and factual requirements for establishing cohabitation and dependency, and the quantum and duration of support for adult children.

Following the breakdown of their common-law relationship, the parties disputed ownership of two properties.

The plaintiff sought a 50% interest in a commercial property registered to the defendant's corporation, while the defendant sought a 50% interest in a residential property registered to the plaintiff.

The court found the plaintiff contributed 50% to the commercial property and awarded her a half interest via resulting trust.

The court dismissed the defendant's claims to the residential property, finding he made no contributions and fabricated invoices to improperly obtain a Certificate of Pending Litigation.

The plaintiff was awarded $241,000 in damages for the improper CPL and $100,000 in punitive damages for the defendant's malicious litigation conduct.

The plaintiff brought a motion to strike the defendants' statement of defence and counterclaim due to their failure to attend examinations for discovery and comply with court-ordered timetables.

The defendants argued that examinations should be delayed until tax liability issues were resolved.

The court found that the defendants unilaterally refused to comply with a court order.

While not immediately striking the defence, the court ordered the defendant Daniel Silver to make himself available for examination within 30 days, failing which the plaintiff could renew the motion to strike.

The plaintiff was presumptively entitled to costs for the motion.

The plaintiff, Randy Burbidge, sought a declaration that the defendants, Pat Casullo and Denise Cardy, held a condominium in trust for him, or alternatively, an award of damages for unjust enrichment.

The condominium was transferred to the defendants in 2006 while the plaintiff was incarcerated, allegedly to protect it from creditors, with an oral agreement for reconveyance upon debt repayment.

The defendants claimed the transfer was a foreclosure and subsequent payments were rent.

The court found the plaintiff's evidence more credible, declared a resulting trust or constructive trust due to unjust enrichment, and ordered the condominium transferred to the plaintiff.

A reference was ordered to determine any remaining amounts owed by the plaintiff for the loan and carrying costs.

Substantial indemnity costs were awarded to the plaintiff due to the defendants' conduct, including strategic litigation at the Landlord and Tenant Board.

The applicant sought costs following a successful motion regarding custody and access.

The court considered whether the respondent acted in bad faith, if a "historic offer" to settle triggered enhanced costs, and the respondent's personal circumstances.

The court found no bad faith, that the offer did not trigger enhanced costs as it did not provide a path to unsupervised access, and that the respondent's unemployment did not warrant a reduction in costs.

The court awarded partial indemnity costs to the applicant and ruled that these costs were not enforceable by the Family Responsibility Office as support, given that support was not an issue before the court.

The applicant sought to remove her two sisters as estate trustees and compel them to pass accounts, alleging inaction in distributing estate funds from a 2017 house sale.

One respondent agreed to step aside, while the other refused to distribute funds, holding them as security for a perceived claim regarding GIC accounts that had not been litigated.

The court found the refusing trustee's position unreasonable and detrimental to the estate's proper administration.

The court ordered the removal of both estate trustees, the appointment of a neutral professional trustee, and the passing of accounts.

The plaintiffs brought a motion to strike several paragraphs from the defendants' statement of defence and counterclaim under Rules 25.06(1) and 25.11.

The court struck portions that pleaded evidence rather than material facts, or were scandalous and vexatious.

However, the court retained paragraphs that properly pleaded material facts regarding consent and contributory negligence.

The plaintiffs were awarded costs of $4,500.

This endorsement addresses the quantum of costs following the dismissal of the Applicant Wife's motion for partition and sale of the matrimonial home.

The motion was dismissed because a prior consent order permitted the Respondent Husband to purchase the Applicant's interest.

The Respondent sought full recovery costs, citing the Applicant's unreasonable litigation conduct and an offer to settle.

The court found the Applicant's conduct unreasonable, including ignoring page limits, attempting to argue issues beyond time limits, misrepresenting hardship, and making unfounded allegations of fraud.

However, full recovery costs were denied because the Respondent's offer to settle was a final offer on equalization and not specific to the motion in question.

The Respondent was awarded partial indemnity costs of $5,500, inclusive of HST and disbursements, to be deducted from the Applicant's share of the matrimonial home.

The defendants brought a motion to stay or dismiss the action, arguing it was improperly commenced by a litigation guardian because the 90-year-old plaintiff had been assessed as capable of managing her property.

The court dismissed the motion, finding that while the plaintiff could manage basic property, the capacity assessor properly concluded she lacked the specific capacity to instruct counsel due to a stroke and the complexity of the litigation.

The court also dismissed the defendants' alternative motion to remove the litigation guardian and plaintiff's counsel for alleged conflicts of interest, finding no evidence that the litigation guardian was acting contrary to the plaintiff's best interests.

Following a summary trial where the plaintiffs were completely successful and awarded damages of $191,429.88, the court determined the appropriate scale and quantum of costs.

The court rejected the defendants' argument that the $50,000 costs cap under Rule 76.12.1 applied, finding the action was commenced before the rule's effective date of January 1, 2020, despite later amendments.

The court declined the plaintiffs' request for full indemnity costs, maintaining its trial finding that substantial indemnity costs were appropriate due to the defendants' egregious and fraudulent conduct.

Costs were fixed at $95,000 for the main action and $25,000 for the construction lien action.

The applicant brought a motion to set aside Minutes of Settlement and order the sale of the jointly owned matrimonial home.

The applicant alleged the respondent materially misrepresented his assets prior to signing the Minutes.

The court found that the conflicting affidavit evidence regarding the respondent's assets could not be resolved on a short motion.

Furthermore, the respondent had complied with the Minutes by obtaining a mortgage commitment to buy out the applicant's interest.

The motion was dismissed with costs.

The Crawfords hired Shane Ross and his companies (Standard Building Contractors Limited and Standard Paving Limited) to rebuild their fire-damaged home.

Despite receiving significant insurance proceeds, the defendants performed minimal work and engaged in fraudulent conduct, including submitting forged engineering documents for a building permit.

The Crawfords terminated the contract and sought damages, return of funds, a permanent Mareva injunction, and a finding of contempt.

The defendants counterclaimed for work done and asserted a construction lien.

The court found that the defendants fundamentally breached the contract, engaged in deceptive and fraudulent conduct, and were in contempt of court for violating a prior Mareva injunction.

The court awarded the Crawfords judgment for the advanced funds (less minimal work value), punitive damages, and dismissed the construction lien, awarding damages under the Construction Act.

The Mareva injunction was made permanent and expanded.

The defendants in a residential construction dispute brought a motion for leave to issue a third party claim against a subcontractor and to adjourn the impending trial.

The plaintiffs opposed the motion, arguing that a delay would cause them undue prejudice as they were living in a trailer with a toddler and expecting another child, while still paying a mortgage on their burnt-down house.

The court denied the motion, finding that the prejudice to the plaintiffs went well beyond mere inconvenience and outweighed the desirability of avoiding a multiplicity of proceedings, especially given the defendants' underwhelming explanation for the late request.

Following a ruling on cross-motions where the applicant was ordered to pay substantial indemnity costs, the court received written submissions on quantum.

The respondent sought $22,326.46, while the applicant argued for no costs or $2,500.

Applying the principles of reasonableness and proportionality under Rule 24(12) of the Family Law Rules, the court fixed costs at $15,000 inclusive of fees, disbursements, and taxes, payable within 30 days.

The parties brought cross-motions regarding child access.

The applicant mother sought to hold the respondent father in contempt and vary access to supervised access, while the respondent sought to expand access or remedy the applicant's denial of access.

The court dismissed the contempt motion, noting a Children's Aid Society letter stating the children were not in need of protection and wished to see the respondent.

The court found neither party proved a material change in circumstances to vary the existing access orders.

However, the court found the applicant had denied access without a lawful basis and ordered her to comply immediately, awarding substantial indemnity costs to the respondent.