Rob L. Winterstein

The applicants sought a declaration that a retaining wall on their property at 41 Indian Grove encroaches onto the respondent's property at 270 Indian Road.

A 21-year encroachment agreement registered on title in 2004 permitted the encroachment to continue until July 29, 2025.

The respondent resisted the declaration on various grounds, including the age of the wall and historical use.

The court found the registered encroachment agreement valid and binding on the successor owners and declared that the retaining wall encroaches on the applicants' lands following the expiry of the agreement.

The court considered motions for costs personally against George Windsor, who commenced proceedings on behalf of Gilles Jozias Overtveld and Gi-Las Management and Maintenance Ltd. without proper authority.

The action was found to be duplicative, meritless, and a waste of resources.

The court fixed costs on a substantial indemnity basis against Mr. Windsor personally, disallowed him from charging legal fees to the plaintiffs, and set out the principles for awarding costs in such circumstances.

The tenants sought a stay of a Divisional Court order, which had dismissed their appeal of a Landlord and Tenant Board eviction order and allowed the landlord's cross-appeal regarding trust monies.

The Court of Appeal applied the RJR-MacDonald test for a stay, finding no serious issue to be tried, no irreparable harm, and that the balance of convenience favoured the landlord due to significant and accumulating rent arrears and the tenants' history of relitigating issues and failing to comply with previous orders.

The motion for a stay was dismissed, and costs were awarded to the landlord.

This appeal concerned a failed business venture between the appellants (Corridor Transport Inc. and Corridor Transport Limited Partnership) and the respondents (Vittorio Junior Lentini, LTI Logistics Inc., and Loblaw Companies Limited).

The appellants claimed breach of contract, conversion, and breach of fiduciary duty by a director.

The trial judge dismissed the action, finding no enforceable contract due to fundamental misunderstandings regarding the parties' identities and entitlement to business proceeds, and no conversion as the appellants lacked a possessory interest in the funds.

The Court of Appeal upheld the trial judge's decision, finding no palpable and overriding error in the factual findings or error in law, emphasizing the trial judge's reasonable conclusion that no meeting of the minds occurred on essential contractual terms.

The appeal was dismissed with costs.

This case concerned a failed business venture between the plaintiffs (Corridor Transport Inc. and Corridor Transport LP) and the defendants (Vittorio Junior Lentini and LTI Logistics Inc.).

The plaintiffs sought damages for breach of contract, conversion, and breach of fiduciary duty, alleging the defendants wrongfully retained $148,967.62.

The court found no enforceable contract due to a lack of meeting of the minds on essential terms, specifically the identity of the contracting parties and the treatment of LTI's accounts receivable.

The court also dismissed the claims for conversion, as the plaintiffs failed to prove a possessory interest in the funds, and breach of fiduciary duty, finding that the alleged fiduciary (Vic Jr.) was not in a position of power or discretion over the plaintiffs, who were not vulnerable.

The action was dismissed in its entirety.

This endorsement addresses the costs of a previously dismissed motion by the plaintiffs for a Certificate of Pending Litigation (CPL).

The defendant, having successfully opposed the CPL, sought costs on a partial indemnity scale.

The court awarded the defendant $24,000 in costs, finding it fair and reasonable.

The decision emphasized that costs should follow the event and that the plaintiffs' delay in bringing the original motion, which necessitated an urgent and expedited process, contributed to the increased costs.

The court rejected the plaintiffs' argument that the subsequent failure of the third-party sale, which was the basis for the original motion's urgency, should negate the costs award, as this was not known at the time of the motion's disposition.

The plaintiffs sought an interlocutory injunction to prevent the defendants from enforcing a security interest over corporate shares that the plaintiff, Avinoam Rabinowitz, had purchased from the defendant, James Westbrook.

Rabinowitz defaulted on the first instalment of the purchase price and claimed equitable set-off due to alleged damages from the share purchase transaction, asserting causes of action including breach of fiduciary duty, fraudulent misrepresentation, and oppression.

The court granted the injunction on the condition that the plaintiffs deposit $650,000 cash or an irrevocable letter of credit with the Accountant of the Court as alternative security.

The judge found that while the plaintiffs' claims on the merits were weak and their conduct lacked "clean hands," the risk of business loss constituted irreparable harm, and the balance of convenience favored protecting the defendants' security interest through alternative collateral.

Costs were reserved to the trial judge.

The plaintiffs brought a motion for leave to issue a Certificate of Pending Litigation (CPL) concerning an agreement to purchase over 800 acres of land from the defendant.

The dispute arose from an alleged misrepresentation regarding the exact acreage of the land and issues related to a historic ship located on the property.

The court found that there was a triable issue regarding the plaintiffs' claim to an interest in the land, which is the first threshold for granting a CPL.

However, after balancing the equities, the court exercised its discretion to deny the CPL.

The denial was primarily based on the plaintiffs' significant delay in bringing the motion (almost three months after the scheduled closing date and awareness of a third-party purchaser), the existence of a third-party agreement for the sale of the land, and the greater harm and inconvenience that granting the CPL would cause to the defendant, effectively acting as an injunction and impeding the sale of a distressed asset.

Blackjet Inc. sought summary judgment against Skyline Investments Inc. et al. for unpaid marketing fees under an Agency Agreement.

The defendants disputed the amount, alleging double-billing and Blackjet's breach of contract for failing to provide monthly reconciliations and appoint an account manager.

The court granted summary judgment, finding some double-billing by Blackjet but dismissing the defendants' breach of contract claim as they had waived their right to enforce it.

Blackjet was awarded a reduced amount for unpaid fees and late payment fees, along with pre- and post-judgment interest.

The moving party sought leave to appeal an order dismissing his appeal of a Master's order that had stayed his action pending payment of numerous outstanding costs orders.

The court dismissed the motion for leave to appeal, finding that the moving party failed to meet the strict two-part test under Rule 62.02(4).

Specifically, there was no conflicting decision of another judge or court, no reason to doubt the correctness of the order, and the proposed appeal did not involve matters of such importance that leave should be granted.

The defendant/moving party sought leave to appeal a decision dismissing his motion for costs.

The motion judge had found that the costs issue was already determined by a prior Master's decision, which was upheld on appeal.

The court dismissed the motion for leave to appeal, finding that the moving party failed to meet the test under Rule 62.02(4) as there was no reason to doubt the correctness of the decision, no conflicting decisions, and the issues did not extend beyond the immediate parties.

Costs were awarded to the responding party on a partial indemnity basis.