Ralph Swaine

The plaintiff vendor moved for summary judgment for damages arising from a failed real estate transaction.

The defendant purchaser failed to close on the agreed date and requested an extension, which the vendor refused after counter-offers were not accepted.

The purchaser argued the vendor failed to mitigate by not granting the extension.

The court rejected this argument, applying appellate authority that a vendor is not obliged to mitigate by reselling to the defaulting purchaser.

Summary judgment was granted to the plaintiff for damages, with the deposit forfeited and applied to the damages, and pre-judgment interest awarded at the contractual rate of 12%.

The defendants and the plaintiff brought cross-motions regarding whether the plaintiff's daughter could attend the plaintiff's cross-examination as a moral support person.

The underlying action involved allegations of elder abuse and a disputed property transfer.

The court found that while a support person could be appropriate given the plaintiff's age and anxiety, the daughter was not an appropriate person.

Because the plaintiff lived with the daughter and might feel pressured to tailor her evidence to please her caregiver, the daughter's presence would create a danger of substantive unfairness.

The defendants' motion was granted and the plaintiff's cross-motion was dismissed.

Following a summary judgment finding the defendants liable for breaching a commercial lease, the court held a mini-trial to quantify damages.

The court accepted the plaintiff's expert evidence on the present value of unpaid rent, less mitigation from a new lease and the value of distrained chattels left by the tenant.

The court awarded the plaintiff $408,046 in damages, plus pre-judgment interest, and $49,046.05 in partial indemnity costs against the active defendants.

The defendant brought a motion to stay a writ of possession and notice to vacate his residential property, and sought an extension of time to perfect a long-dormant Divisional Court appeal of a summary judgment granting possession to the plaintiff.

The court found the defendant had not maintained an intention to appeal, provided no satisfactory explanation for a 19-month delay, and engaged in deceptive conduct including relying on a fabricated consent letter.

The motion for an extension of time was dismissed, the appeal was dismissed for delay, and the stay was denied, save for a brief extension to allow the defendant's family to relocate.

Costs were awarded to the plaintiff on a full indemnity basis due to the defendant's reprehensible conduct.

The court determined costs arising from a successful motion to set aside a default judgment in a mortgage dispute.

Although the defendant succeeded in setting aside the default judgment due to improper service and entitlement to an accounting, the plaintiff later obtained summary judgment on the underlying debt.

Applying Rule 57.01 and principles of proportionality, the court assessed reasonable partial indemnity costs for both counsel fees incurred and limited compensation for time spent by the self‑represented litigant.

The court rejected portions of the defendant’s claimed self‑represented costs as excessive and emphasized reasonable expectations and proportionality relative to the modest amount in dispute.

The defendant moved to set aside a default judgment obtained by the plaintiff for repayment of a loan secured by a Sharia-compliant second mortgage.

The defendant argued that his monthly payments were repayments of principal, not interest, which his faith forbids.

The court found that the defendant satisfactorily explained his failure to deliver a defence, moved promptly to set aside the judgment, and raised a potentially meritorious defence due to ambiguities in the financing agreements.

The motion to set aside the default judgment was granted.

Following dismissal of an application seeking a certificate of pending litigation and specific performance relating to two Brampton properties, the successful respondents sought costs exceeding $10,000 on a partial indemnity basis.

The applicant argued the requested costs were excessive given the limited length and complexity of the hearing.

The court agreed that the hours claimed and counsel fee were excessive for a matter argued in under two hours.

Costs were reduced and fixed at $5,807 inclusive of HST and disbursements.

The defendants moved to vacate a Certificate of Pending Litigation obtained ex parte against a Mississauga property.

The court found that the plaintiff failed to make full and frank disclosure by omitting information suggesting he knew the overseas land transaction involved a leasehold interest with a much lower purchase price.

Nevertheless, the court concluded the plaintiff had a sufficient interest arising from funds advanced to the defendant and concerns about the timing and consideration of the property transfer to family members.

The CPL was vacated due to the disclosure failure, but the court exercised its discretion under the Courts of Justice Act to require substantial security to protect the plaintiff’s potential claim.