Robert Kalanda

The court considered a motion by the defendants to discharge the plaintiff’s construction lien and dismiss the action as frivolous, vexatious, or an abuse of process, or for delay.

The dispute centered on whether the plaintiff was a proper lien claimant, the nature of his relationship with the defendants (partnership or subcontractor), and whether the lien was properly quantified.

The court found triable issues on the relationship and quantification, dismissed the motion to discharge the lien, and imposed a timetable for the next steps in the litigation.

The decision addresses three motions in a civil action: the plaintiffs’ motion to extend and validate service of their statement of claim, the defendants’ motion for a status hearing, and the defendants’ motion to dismiss the action for delay.

The court validates service on the individual defendants, finds that limitation period arguments raise triable issues, and concludes that both parties contributed to the delay.

The court grants the plaintiffs’ motion for a status hearing, dismisses the defendants’ motion to dismiss for delay, and sets a timetable for the action to proceed to trial.

The Landlord, Radice Management Services Inc., brought a motion for default judgment against the Tenant, Alex Balm (wrongly named Alex Baum), for rental arrears and an order for possession.

The Landlord also sought to amend the title of proceeding to correct the misnomer.

The court granted the default judgment, finding the Landlord established liability based on deemed admissions.

Damages for outstanding rent and utilities were awarded, totaling $111,656.15.

The court confirmed its concurrent jurisdiction with the Landlord and Tenant Board under section 207 of the Residential Tenancies Act to award monetary damages exceeding the Board's jurisdiction and to grant orders for possession.

The court also allowed the amendment to correct the misnomer in the defendant's name.

Costs were awarded to the Landlord on a partial indemnity basis.

This case involved a construction lien action and counterclaim concerning renovation work at York University.

Monalt Environmental Inc. (subcontractor) sued BDA Inc. (contractor) for unpaid work, while BDA counterclaimed for completion costs, alleging Monalt failed to complete the full scope of demolition work, specifically stairs and a ceiling slab.

The court found that Monalt's contractual scope of work did include the disputed demolition.

Monalt breached the contract by refusing to complete this work and suspending operations without a contractual basis for demanding payment.

BDA was justified in withholding payment.

The court assessed BDA's proven damages for completion costs and set them off entirely against Monalt's claim for unpaid amounts, resulting in no net amount owing to Monalt and no judgment for either party on their respective claims.

The plaintiff, an elderly widow acting through her litigation guardian, sought to evict her son from her property so she could sell it to fund her long-term care.

The son claimed they had formed an oral contract in 2010 for him to purchase the property and counterclaimed for an interest in the land or unjust enrichment for renovations.

The court found no enforceable contract existed as essential terms were never agreed upon, and the son's actions did not constitute part performance under the Statute of Frauds.

The court also dismissed the unjust enrichment claim, finding the son's rent-free living offset any contributions.

The son was ordered to vacate the property.

The corporate plaintiff brought a motion for leave under Rule 15.01(2) to be represented by a non-lawyer agent, who was the son of the sole shareholder but held no official position in the corporation.

The defendants opposed the motion.

The court denied leave, finding that the proposed agent was not an officer, director, or shareholder, and allowing him to act would contravene the Law Society Act and Solicitors Act.

The court also noted concerns about his capability and the lack of personal financial consequences constraining his litigation decisions.

Under Construction Incorporated (UCI) brought an ex parte motion seeking a declaration that O'Neil Davis's construction lien had expired, along with orders to discharge the lien and release funds posted to vacate it.

UCI's evidence, a lawyer's affidavit, was deemed insufficient by the Master due to lack of detail regarding efforts to confirm non-perfection, the status of UCI's own lien (for potential sheltering), and Davis's classification as a contractor or non-contractor, which affects lien expiry dates.

The Master emphasized the need for clear evidence for ex parte relief and offered UCI 14 days to file supplementary materials, failing which the motion would be dismissed without prejudice.

The appellants appealed a motion judge's discretionary decision to deny their request for an extension of time to set an action down for trial.

The appellants claimed the motion judge committed legal errors and palpable and overriding errors of fact.

The Court of Appeal upheld the motion judge's decision, finding that the appellants failed to provide an acceptable explanation for the delay and failed to demonstrate that the respondent would not suffer non-compensable prejudice.

The court found the medical evidence inadequate to establish that the appellant's medical condition prevented prosecution of the lawsuit, and noted that despite the pre-existing condition, the appellant had advanced litigation until 2015 and pursued another related action to conclusion in 2018.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed the dismissal of her application for a declaration that she holds a permanent easement over part of the respondent's property.

The two parties own neighbouring houses in Toronto.

The appellant claimed a right of easement over the passageway between the properties based on historical use by the former owner of her property for cleaning and repairs.

The application judge found that the historical use was permissive and infrequent, not "as of right" as required for a prescriptive easement.

The Court of Appeal upheld the dismissal, finding no error in the application judge's characterization of the occasional permissive use and affirming that the threshold for establishing an easement is high.

The respondent, having successfully defended an application regarding a prescriptive easement and property damage, sought partial indemnity costs of $62,755.63.

The applicant opposed the quantum, arguing the file was overworked and the rates were excessive, noting her own costs would have been approximately $18,000.

The court agreed that the costs claimed exceeded what an unsuccessful party could reasonably expect to pay for this type of litigation.

Costs were assessed and awarded to the respondent in the amount of $40,000 all inclusive.

The applicant sought a declaration of a prescriptive easement over a passageway on the respondent's adjoining property and damages for the pruning of an overhanging tree limb.

The court found that the historical use of the passageway by the applicant's predecessors was permissive and neighbourly, not 'as of right', and thus no prescriptive easement was established.

The court also dismissed the claim for damages, holding that the respondent was legally entitled at common law to prune the overhanging branches of the applicant's tree that intruded onto her property.

The respondents in an application for assessment of solicitors’ accounts brought a motion to consolidate that application with a related action seeking payment of outstanding legal accounts and enforcement of a retainer agreement.

The moving parties argued consolidation under Rule 6.01 of the Rules of Civil Procedure would avoid multiplicity of proceedings because both matters involved overlapping issues relating to the retainer agreement and the accounts rendered.

The court held that the issues raised in the assessment application were comparatively straightforward and could be determined efficiently through the application process rather than a lengthy trial.

Consolidation would likely create delay and additional expense and would undermine the expeditious process contemplated for assessments under the Solicitors Act.

The motion to consolidate was therefore dismissed.

The defendants brought a motion to strike portions of the plaintiffs’ Statement of Claim in a franchise dispute.

In an earlier endorsement, the court struck certain portions while permitting others to proceed.

This addendum clarified additional paragraphs that the parties had agreed should be struck prior to the motion argument but which were not listed in the original endorsement.

The struck portions related to unsupported claims against individual defendants, including negligence, breach of contract, statutory duties under franchise legislation, and claims for injunctive relief and lost opportunity damages.

The court confirmed that the listed portions of the Statement of Claim were struck in accordance with the parties’ agreement.

The defendants brought a motion for summary judgment arguing that the plaintiff’s claim was barred by a limitation period.

The court held that the moving parties failed to provide a proper evidentiary record, relying largely on pleadings and correspondence and offering only a legal assistant as affiant.

Applying the principles in Combined Air Mechanical Services Inc. v. Flesch, the court found that a full appreciation of the issues requires substantive affidavit evidence and adequate disclosure, particularly where discoverability may be engaged.

Given the absence of documentary discovery and meaningful evidence from the defendants, the motion was premature.

The motion was adjourned to permit documentary and oral discoveries before the summary judgment motion proceeds.

The defendants brought a motion to strike portions of the plaintiffs' amended statement of claim in a franchise dispute.

The plaintiffs, franchisees of a Cora restaurant, alleged misrepresentation, breach of contract, and breach of the Arthur Wishart Act after the franchisor opened another location nearby.

The court struck the breach of contract and negligence claims without leave to amend, finding they contradicted the express terms of the franchise agreement which granted no exclusive territory.

The misrepresentation claims were struck with leave to amend for lack of particularity.

The claims under the Arthur Wishart Act and for injunctive relief were allowed to proceed.

The plaintiff sued the defendant for breach of contract and misrepresentation arising from a franchise agreement.

The defendant brought a motion for summary judgment dismissing the action as statute-barred.

Before discoveries took place, the plaintiff moved to strike the summary judgment motion on the grounds of prematurity.

The court dismissed the motion to strike, applying the test that such a motion should only be granted in the clearest of cases.

The court found that the summary judgment motion had a reasonable chance of success and the matter was not overly complicated.