Roderick Byrnes

The appellant, Juleth Dawson, appealed a motion judge's judgment for payment and possession under a mortgage, primarily challenging the calculation of interest owing.

The Court of Appeal found no error in the motion judge's decision not to reduce the contractual interest rate from 7.5% to 2% due to the respondents' failure to deliver a mortgage statement.

The court distinguished the case from Cheung v. Moskowitz Capital Mortgage, affirming that the discretion to reduce interest is fact-driven and requires evidence of the mortgagee seeking an advantage or the mortgagor suffering prejudice.

As no such advantage was sought or prejudice suffered, and payments had not been made for four years, the appeal was dismissed.

The plaintiff, Metropolitan Toronto Condominium Corporation No. 1049, brought a motion to strike the defendant's statement of defence for failure to retain counsel, or in the alternative, to compel them to do so, pursuant to Rule 15.01(2) of the Rules of Civil Procedure.

The defendant, a corporation, was represented by its sole officer and director, who had been disbarred.

The court found that the defendant failed to provide sufficient evidence of authorization or financial inability to retain counsel, and that the proposed representative's past professional misconduct raised concerns about protecting corporate interests.

The motion was granted, ordering the corporation to retain counsel within 30 days, failing which its statement of defence would be struck, and awarded costs to the plaintiff and third party.

Following a family law trial concerning custody, access, and mobility, the successful party sought substantial indemnity costs exceeding $170,000 including costs of earlier motions.

The court applied Rule 24 of the Family Law Rules and considered the effect of an unaccepted offer to settle under Rule 18(14), the parties’ conduct during litigation, and the presumption that costs follow success.

The court found the successful party’s conduct reasonable and the opposing party’s conduct contributed to unnecessary trial length and litigation complexity.

However, the bill of costs did not clearly segregate financial issues from parenting issues, warranting a modest reduction.

Considering the opposing party’s limited financial circumstances as a discretionary factor, the court fixed costs at $105,000 inclusive.

The applicant father and respondent mother contested custody of their three-year-old child.

The mother had previously taken the child to Germany without the father's consent, leading to a Hague Convention order returning the child to Canada.

The mother sought custody and permission to relocate to Germany, while the father sought sole custody in Canada.

The court found that the mother's lingering anger and history of interfering with the father's access posed a significant risk to the child's relationship with the father.

Applying the best interests test, the court awarded sole custody to the father and established an access schedule for the mother, contingent on whether she remained in Canada or returned to Germany.

The moving defendants sought leave under Rule 26.01 of the Rules of Civil Procedure to amend their joint statement of defence, counterclaim, crossclaim, and third party claim by delivering separate pleadings and adding additional allegations and claims.

The court reaffirmed that leave to amend should generally be granted unless non-compensable prejudice would result, but scrutinized the proposed amendments for improper pleadings, including arguments, evidence, irrelevant matters, and procedural history that should instead be addressed through motions.

Numerous proposed paragraphs were rejected for pleading evidence, lacking particularity, or raising issues relating to pre-trial disclosure.

Leave was granted in part for both moving parties to amend their pleadings and third party claims, subject to extensive limitations and corrections.

Costs of $3,000 were awarded to one set of responding defendants for part of the motion.