Robert E. Charney

The appellant contractor registered a construction lien against the respondent's property but failed to perfect it by registering a certificate of action in a timely manner.

The motions judge declared the lien expired and vacated it pursuant to the mandatory provisions of the Construction Act, and awarded substantial indemnity costs against the appellant.

On appeal, the Divisional Court affirmed the decision, holding that the failure to perfect a lien is a statutory breach that cannot be cured by procedural rules or equitable doctrines.

The appeal was dismissed with costs awarded to the respondent.

The plaintiff brought a motion for leave to admit a late-served expert report on broker negligence in an action arising from a motorcycle accident.

The expert report was served five months after the deadline under the Rules of Civil Procedure and one month after a without-prejudice deadline set by the pre-trial judge.

The court applied the two-part test under Rule 53.08(1), finding that while the explanations of difficulty finding an expert and staff turnover were problematic, the unique circumstance that the report was served nearly two years before the reconvened pre-trial tipped the balance in the plaintiff's favour.

Leave was granted.

The court also directed the order of trial, ordering the tort action against the municipality to proceed first, followed by the broker negligence action.

The plaintiff brought a motion for leave to file a Certificate of Pending Litigation (CPL) against the defendant's property in Richmond Hill, Ontario.

The plaintiff claimed a 50% undivided ownership interest in the property based on a partnership agreement executed in 2017.

The defendant disputed the plaintiff's ownership claim, alleging he solely funded the property purchase and that the plaintiff's contribution was insufficient to establish partnership rights.

The court found the plaintiff demonstrated a triable issue regarding her interest in the property and granted leave to issue the CPL, finding the equities supported the order.

Costs were ordered to be in the cause.

The applicant, a land developer, sought an order requiring the respondents to remove encroachments from the applicant's property in Vaughan, Ontario.

The encroachments included a concrete retaining wall, a wooden retaining wall, and metal fence posts that crossed the property line.

The respondents requested an adjournment pending a consolidation motion with a separate action.

The court declined the adjournment and proceeded with the application.

The court found that the encroachments constituted trespass and were not de minimis.

The court granted a mandatory injunction requiring removal of the concrete retaining wall, wooden retaining wall, and metal fence posts within 45 days, with permission for the applicant to remove them at the respondents' cost if they failed to comply.

The tenant filed a Notice of Appeal from a Landlord and Tenant Board review order.

The court noted the appeal was out of time, as the tenant had sought multiple reviews of the same order instead of appealing the initial review decision within the 30-day limit.

The court dismissed the appeal under Rule 2.1.01 as an abuse of process, without prejudice to the tenant's right to bring a motion for an extension of time to appeal.

The plaintiffs brought a summary judgment motion seeking return of their deposits and damages for breach of an Agreement of Purchase and Sale for a condominium unit.

The defendant vendor brought a cross-motion for possession and damages.

The central issue was which party breached the APS by failing to close.

The vendor delivered a Statement of Adjustments containing approximately $60,000 in additional charges that were either unauthorized or unsupported by evidence.

The plaintiffs refused to close pending clarification or removal of these charges.

The court found the vendor's demand for additional payment constituted an anticipatory breach of contract, entitling the plaintiffs to terminate the agreement and recover their deposits.

The court also granted the vendor possession of the unit and damages for occupancy fees, property taxes, and condominium fees incurred during the plaintiffs' continued occupation.

The applicant, the wife of an incapacitated man, sought appointment as guardian of his person and property.

The respondents, the incapacitated man's siblings and mother, opposed the application and sought to have one of the siblings appointed as guardian instead.

The court found that the applicant and her daughter were in a closer relationship with the incapacitated person than his siblings, and that the sibling proposed as guardian had a conflict of interest regarding disputed property ownership.

The court appointed the applicant and her daughter as joint guardians.

This is a costs decision following a nine-day trial in a breach of contract case concerning the distribution of proceeds from the 2012 sale of a company owned by the parties.

The plaintiff was awarded $405,199 out of a total claim of $2,319,567, representing only 18% of the amount claimed.

The plaintiff succeeded on one of three main issues (the distribution of profits after the 2012 sale) but failed on the validity/enforceability of amending agreements and the allocation of salaries.

The court awarded costs to the plaintiff as the successful party, but reduced the amount to account for the time and resources spent on unsuccessful issues.

A personal injury action arising from a fall sustained by the plaintiff while hunting in a deer blind on the defendants' rural property.

The plaintiff initially pleaded that the defendant Todd Drain was an occupier under the Occupiers' Liability Act but withdrew this allegation on the first day of trial.

The court determined that the withdrawal of the occupier allegation eliminated most claims against Todd Drain, leaving only a claim based on alleged misfeasance—specifically, that Todd Drain removed an artificial turf carpet from the deer blind floor, causing it to become wet and slippery.

The jury found that the artificial turf was present on the date of the accident, thereby dismissing the action against Todd Drain.

The decision addresses the interplay between the Occupiers' Liability Act and common law negligence, the proper formulation of jury questions, and the consequences of withdrawing pleadings mid-trial.

This is a costs endorsement following the court's July 29, 2025 decision granting the plaintiffs' motion to extend a Mareva injunction and dismissing the defendant's cross-motion to discharge it.

The plaintiffs sought costs on a substantial indemnity basis (80%) in the amount of $60,374.66, or alternatively on a partial indemnity basis (60%) in the amount of $46,459.84.

The defendant argued costs should be awarded in the cause.

The court adopted the principle that costs for interlocutory injunctions should generally be reserved to the trial judge, but fixed the quantum at this stage to avoid duplication.

The court awarded partial indemnity costs of $46,459.84 to the successful party in the cause, finding that substantial indemnity costs were not appropriate as no final finding of fraud had been made.

The plaintiff mortgagee brought a motion for summary judgment against the defendant mortgagor for alleged mortgage default.

The defendant disputed the renewal fee amount, claiming the parties had agreed to reduce it from 6% to 4% and that she had paid the reduced amount in cash.

The court rejected the defendant's evidence as uncorroborated and lacking credibility.

The court also addressed procedural issues regarding the timing of the Statement of Claim relative to the Notice of Sale under the Mortgages Act, and rejected the defendant's argument that the Farm Debt Mediation Act applied.

Summary judgment was granted in favor of the plaintiff.

The plaintiff mortgagee brought a motion for summary judgment seeking payment of the outstanding mortgage balance and possession of the property following the defendants' failure to pay after the mortgage matured on May 1, 2024.

The defendants argued the mortgage agreement was unconscionable due to inequality of bargaining power arising from criminal charges they faced, and that they were misled about renewal options.

The court granted summary judgment, finding the mortgage terms were clear and unambiguous, that the criminal charges post-dated the mortgage agreement and therefore could not render it unconscionable, and that unconscionability cannot be used to compel an unwilling party to enter into a new agreement.

The plaintiff brought a motion for default judgment against the defendant, seeking general damages of $250,000, compensatory/ongoing support of $1,700 per month, and injunctive relief.

The defendant had filed a Notice of Intent to Defend and was represented by counsel.

The motion was brought without notice to the defendant, one day after the deadline for filing the Statement of Defence.

The court dismissed the motion without prejudice, finding that best practice requires service of the motion record on the defendant, that the plaintiff failed to provide the Statement of Claim, and that there were questions about whether a valid cause of action had been pleaded and whether the action constituted an impermissible collateral attack on earlier family court decisions.

The plaintiff brought a motion for leave to deliver an expert economic loss report after the pre-trial conference had been completed.

The motion was brought pursuant to Rules 53.03(4) and 53.08 of the Rules of Civil Procedure.

The plaintiff argued that an accurate economic loss report could not be obtained until the trial date was fixed.

The court rejected both the plaintiff's argument based on the Simplified Procedure and the argument regarding the necessity of a fixed trial date.

The court found that the plaintiff failed to provide a reasonable explanation for the failure to comply with Rule 53.03(2) and dismissed the motion with costs fixed at $3,500 on a partial indemnity basis.

The self-represented applicant brought an application for judicial review of two decisions made by Superior Court judges.

The Divisional Court issued a notice under Rule 2.1.01 indicating the application appeared to be an abuse of process because the court lacks jurisdiction to judicially review decisions of Superior Court judges.

The applicant argued that her Charter claims superseded statutory jurisdictional limits.

The court rejected this argument, holding that the Charter does not expand the statutory limits of the Divisional Court's jurisdiction under the Judicial Review Procedure Act.

The application was dismissed as an abuse of process.

The applicant sought to set aside an interlocutory order granting a Certificate of Pending Litigation and an interlocutory injunction issued by Justice Vallee on August 6, 2025.

The respondent had commenced a new action seeking to declare the applicant's mortgage void and unenforceable, following the applicant's successful summary judgment motion for possession of mortgaged property.

The respondent failed to disclose prior judicial decisions dismissing similar motions and denying stays of the summary judgment.

The court found that the respondent's failure to make full and fair disclosure as required by Rule 39.01(6) was sufficient grounds to set aside the order.

The court also found that the new action constituted an abuse of process and an impermissible collateral attack on the prior summary judgment decision.

The applicant brought an application for judicial review against various police respondents and the Law Enforcement Complaints Agency, seeking compensatory and punitive damages.

The respondents requested that the application be dismissed under Rule 2.1.01 of the Rules of Civil Procedure.

The Divisional Court dismissed the application as an abuse of process, noting that it does not have jurisdiction to award damages on an application for judicial review under the Judicial Review Procedure Act.

The applicant, a café and lounge, was charged with 14 counts alleging breaches of the Durham Region Smoke and Vape By-Law across six separate informations covering a three-year period.

The municipal prosecutor brought a joinder application to have all charges heard together in one trial.

The Justice of the Peace granted the joinder application, relying on a factum filed by the prosecutor without requiring affidavit evidence.

The applicant sought certiorari to quash the joinder order, arguing that the decision constituted a denial of natural justice because the JP relied on unsworn submissions.

The Superior Court dismissed the application, finding that the JP had jurisdiction to order joinder and that no substantial wrong or miscarriage of justice had occurred.

A family law trial concerning child support and equalization following the separation of a married couple with one child.

The applicant father sought to reduce his child support obligations and contested the respondent mother's equalization claim.

The court found the applicant's income to be $45,000 per year based on his employment history and rejected the respondent's request to impute significantly higher income despite evidence of substantial unexplained spending.

The court awarded the respondent an equalization payment and costs on an elevated basis due to the applicant's poor disclosure compliance and conduct.

Two business partners who built a successful commercial cleaning company and sold it for over $20 million in 2012 disputed the distribution of sale proceeds and allocation of profits.

The plaintiff challenged the validity of shareholder amending agreements signed in 2002 and 2009 that altered profit-sharing arrangements for newly established divisions.

The court found the agreements valid and enforceable but determined the defendant breached the agreements by unilaterally calculating the allocation of sale proceeds using revenue rather than profit as the basis, and by failing to involve the company's chartered accountant as required.

The court awarded the plaintiff $405,199 representing the overpayment to the defendant from the improper allocation methodology.

Claims regarding salary allocations were dismissed as statute-barred.