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 moving parties brought a motion for mandamus and related relief in the context of an ongoing landlord and tenant appeal.

The Divisional Court struck out the motion as an abuse of process, noting the moving parties' stream of vexatious attacks on scheduling orders.

The court ordered that the moving parties are foreclosed from bringing any further motions or proceedings in the court without prior permission from the case management judge.

The landlord appealed a Landlord and Tenant Board review order that removed the respondent as a party to a rent arrears application.

The LTB had found the respondent vacated the unit before September 1, 2021, and was therefore not a 'tenant in possession' under section 87 of the Residential Tenancies Act, depriving the LTB of jurisdiction over him.

The Divisional Court dismissed the appeal, holding that the LTB applied the correct legal test for possession and its application of that test to the facts was a question of mixed fact and law, which is not subject to appeal under section 210(1) of the Act.

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.

The tenants appealed a Landlord and Tenant Board Review Order that dismissed their motion to void an eviction order.

The tenants argued the eviction order expired because it was not filed with the Sheriff within six months under s. 81 of the Residential Tenancies Act.

The Divisional Court dismissed the appeal, holding that the six-month period was stayed under s. 25(1) of the Statutory Powers Procedure Act while the tenants' previous appeal was pending.

The landlord's cross-appeal was allowed, as the Board erred in law by automatically returning rent monies held in trust to the tenants without considering its discretion to waive the applicable rule in the interests of fairness.

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.

The landlord appealed a Landlord and Tenant Board decision ordering it to reimburse the tenant for rent overcharges, as well as the Board's subsequent refusal to review the decision after the landlord failed to attend the hearing.

The landlord argued the Board cited the wrong statutory provision regarding parking fees and erred in rejecting its explanation of a computer glitch for missing the hearing.

The Divisional Court dismissed the appeal, finding that the Board applied the correct legal test despite citing the wrong section, and that the Board's finding on the landlord's lack of reasonable diligence was an unappealable question of mixed fact and law.

The landlord brought a motion to quash the tenant's appeal of a Landlord and Tenant Board eviction order and to lift the automatic stay.

The tenant, an 80-year-old senior, was evicted due to severe hoarding that created a fire hazard and violated a Fire Protection and Prevention Act order.

The Divisional Court found that the tenant's notice of appeal raised only questions of fact or mixed fact and law, not pure questions of law as required by the Residential Tenancies Act.

The court quashed the appeal, lifted the stay of eviction, and awarded $10,000 in costs to the landlord.

The landlord brought a motion without notice to lift the stay of a Landlord and Tenant Board eviction order, arguing the tenant failed to comply with a case management direction to pay ongoing rent and arrears.

The tenant had made partial payments but remained in significant arrears.

The court declined to lift the stay immediately, noting the tenant had not received notice of the motion, and instead issued an order giving the tenant a final opportunity to bring his payments into good standing before the landlord could move again on notice.

The defendants were charged with undertaking development in a wetland without a permit under the Conservation Authorities Act.

The prosecution brought a motion to preclude the defendants from challenging the TRCA's jurisdiction and the existence of a wetland, which the court dismissed as violating the presumption of innocence.

The defendants brought an application under s. 11(b) of the Charter alleging unreasonable delay.

The court found a net delay of 21.5 months, exceeding the 18-month presumptive ceiling for provincial offences.

Finding no exceptional circumstances to justify the delay, which was exacerbated by a lack of judicial resources, the court stayed the charges.

The appellants (tenant and spouse) appealed a Landlord and Tenant Board decision upholding an eviction order.

At a case conference, the tenant brought a motion to strike the landlord's cross-appeal.

The Divisional Court dismissed the motion, finding the cross-appeal raised a valid legal issue regarding the return of rent paid into trust.

The court also struck the tenant's spouse as a party appellant, noting he was not a tenant, and prohibited him from acting as her legal representative due to his inappropriate submissions.

Finally, the court ordered the tenant to pay ongoing rent and a portion of arrears as a condition of maintaining the stay of eviction pending appeal.

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.

The tenants brought a motion under s. 21(5) of the Courts of Justice Act to review a case management judge's order requiring them to pay ongoing rent and a portion of substantial arrears to maintain a stay of eviction pending their appeal from the Landlord and Tenant Board.

The tenants argued the respondent was not the true landlord and objected to the case management process.

The Divisional Court dismissed the motion, finding no error of law or palpable and overriding error of fact in the case management judge's discretionary order, and affirmed the court's practice of managing LTB appeals efficiently.

The defendant, UAP Inc., brought a motion seeking security for costs against the corporate plaintiff, Mountainwide Auto Parts Ltd., under Rule 56.01(1)(d).

The court found that UAP's unexplained delay of more than five years in bringing the motion was fatal.

The court also noted that UAP did not seek security against the individual plaintiffs and possessed significant financial resources, concluding the motion was tactical rather than a genuine effort to secure costs.

The motion was dismissed.

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 tenant brought a motion to set aside two decisions of a single judge of the Divisional Court that quashed his appeal of a Landlord and Tenant Board eviction order and refused to stay the quashing order.

The tenant argued his appeal was based on a denial of procedural rights, not an attempt to game the system.

The Divisional Court dismissed the motion, finding the tenant's appeal was an abuse of process because he had no defence to the non-payment of rent and was using the proceedings to live rent-free.

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.

The plaintiff condominium corporation brought a motion in writing for default judgment for possession and foreclosure against the defendant unit owner for unpaid common expenses.

The defendant was noted in default.

The court granted the motion, ordering possession and foreclosure of the equity of redemption in favour of the condominium corporation, with a condition to pay the second defendant's mortgage upon sale.