Robert Kerr

Following a motion concerning vesting of lands and alleged contempt of a prior order in estate litigation, the court addressed the issue of costs.

The moving party had been substantially successful in obtaining the primary relief sought, though the contempt finding was not granted.

The court considered the discretionary principles under s.131 of the Courts of Justice Act and the factors in Rule 57.01 of the Rules of Civil Procedure, as well as the effect of a prior offer to settle under Rule 49.

Although the moving party sought higher costs based on substantial indemnity following its offer to settle, the court found some merit in the responding party’s position and noted the matter primarily served to bring closure to a long-standing dispute.

Costs were therefore fixed in a reduced amount.

The estate trustee during litigation brought a motion seeking a vesting order to implement transfers of land and easements required by a prior settlement order, and also sought a contempt finding against the respondent for failing to provide instructions necessary to complete registration.

The dispute concerned the location of a pedestrian right-of-way to the waterfront that the respondent argued was impractical due to steep terrain.

The court held that the respondent had entered into the settlement with knowledge of the terrain and had failed for several years to bring any motion to vary or clarify the order.

While the vesting order should be granted to implement the nearly six-year-old order, the court was not satisfied that the respondent had deliberately disobeyed a clear and unequivocal order.

Accordingly, contempt was not established beyond a reasonable doubt.

A dispute arose from a homemade commercial farm lease containing inconsistent provisions regarding the lease term.

The tenants sought declarations regarding the lease term, access to the property, and injunctions relating to interference with their farming operations, while the landlords counter‑applied for a declaration that the lease had ended or was properly terminated for cause.

The court applied principles of contractual interpretation, including the dominant purpose of the agreement and consideration of surrounding circumstances, to resolve ambiguity between a clause stating a two‑year term and another describing the lease as a “one year lease.” The court concluded that the lease term ran from December 1, 2011 to November 1, 2013.

However, the tenants’ deliberate non‑payment of rent for several months constituted a breach entitling the landlords to terminate the lease, and the tenants were ordered to pay arrears and vacate the premises within a defined period.