Ronald Birken

The plaintiffs, owners of single-family homes, leased their properties to the defendant who fraudulently converted them into illegal rooming houses.

After the defendant failed to comply with a previous court order to restore the properties to single-family dwellings, the plaintiffs brought a motion for contempt and a writ of possession.

The court found the defendant in civil contempt, granted the plaintiffs exclusive possession under its inherent jurisdiction to enforce its orders, and ordered the defendant to pay $36,000 in restitution or face a 120-day jail sentence.

The defendant moved for summary judgment to dismiss the plaintiff's action regarding the termination of several franchise and non-branded agreements for convenience stores at remote campsites.

The defendant argued it terminated the agreements in accordance with their clear provisions and a client's cost-cutting directive.

The plaintiff argued the termination breached the agreements, the defendant's Code of Conduct, and obligations of good faith, alleging the defendant terminated the agreements to appropriate the business for itself.

The court dismissed the motion, finding the plaintiff raised genuine issues requiring a trial.

A commercial cold storage lease dispute concerning the interpretation of an energy cost pass-through clause and the tenant's right to renew.

The tenant failed to pay claimed increased energy costs, which the landlord characterized as a default preventing lease renewal.

The application judge found the tenant in breach and declined to grant relief from forfeiture due to lack of due diligence.

On appeal, the tenant challenged only the relief from forfeiture decision, arguing the wrong legal test was applied.

The appellate court upheld the decision, confirming that relief from forfeiture in lease renewal contexts requires a narrower test than the standard three-pronged approach, and that the tenant must demonstrate diligent efforts to comply with lease terms.

The court issued additional reasons for judgment to quantify the amounts owed by the Applicant, McRae Cold Storage Inc., to the Respondent, Nova Cold Logistics ULC, under a commercial lease, following a previous judgment.

The undisputed amounts for energy surcharges, interest, and costs totaled $168,104.10, which were ordered to be released from trust.

The entitlement to holdover rent, totaling $212,199.09, remained contingent on the outcome of McRae's appeal of the original judgment.

This endorsement addresses the costs arising from a dismissed motion for partial summary judgment brought by the defendants and a dismissed cross-motion brought by the plaintiff.

The court found the defendants were wholly unsuccessful on their motion, entitling the plaintiff to costs.

The plaintiff was awarded $38,000 on a partial indemnity basis, all-inclusive, payable within 30 days, after considering the reasonableness of the plaintiff's counsel's hourly rates and the nature and complexity of the issues.

The plaintiff's action for $25 million in damages was dismissed in full against all defendants.

This endorsement addresses the defendants' claims for costs.

The court found the plaintiff's principal, Mr. Lagani, engaged in blameworthy conduct, including misleading the court, intimidating witnesses, and making unsubstantiated allegations of fraud, warranting substantial indemnity costs.

The court declined to award costs against Mr. Lagani personally due to lack of jurisdiction and insufficient notice.

The court also rejected the Berczy Group's claim for equitable set-off against funds owed to the plaintiff, stating set-off cannot be used as a "sword" to proactively claim funds.

Substantial indemnity costs were awarded to all defendants.

The appellant appealed a decision of the Superior Court of Justice.

The Court of Appeal found no error in the motion judge's conclusion and dismissed the appeal with costs fixed at $8,000 inclusive of disbursements and HST, payable $4,000 to each respondent.

The defendant, MCAP Financial Corporation, brought a motion for summary judgment to dismiss the plaintiff's action, which alleged that MCAP acted improvidently in selling a mortgaged property under power of sale.

The court found that there were genuine issues requiring a trial regarding the reasonableness of MCAP's conduct in the sale process, including the property valuation methodology, the consideration of environmental remediation tax advantages, the marketing efforts, and the evaluation of multiple offers.

The motion for summary judgment was dismissed.

The applicant, Claudio Posocco, sought a declaration that his guarantee for a mortgage was discharged.

This application was a re-hearing ordered by the Court of Appeal, based on fresh evidence of a foreclosure judgment obtained by a prior mortgagee.

Posocco argued that the foreclosure extinguished his guarantee for a junior mortgage.

The court dismissed the application, distinguishing the facts from *Rushton v. Industrial Development Bank* by noting that the mortgages were distinct, not a single mortgage encompassing multiple parcels.

Relying on *Isman v. Sinnott*, the court held that foreclosure of a first mortgage by a party who also held a junior mortgage did not extinguish the rights under the junior mortgage's covenant.

Additionally, the court found that the guarantee's contractual terms explicitly made Posocco liable as a principal debtor even in the event of prior foreclosure, and that the property had not yet been disposed of, leaving open the potential for reconveyance.

Following a trial where the applicant was successful on the remaining issues, the applicant sought costs of $75,000 on a substantial indemnity basis.

The court declined to award substantial indemnity costs because the value of the applicant's shares, and thus whether his offer to settle was beaten, could not be determined until an auction was held.

The court awarded partial indemnity costs, discounted to account for claims the applicant withdrew just before trial.

The respondent was ordered to pay $30,000 all-inclusive.

Following a successful application in which a franchisor was found to have wrongfully terminated a franchise agreement and the franchisee was ordered reinstated, the court addressed costs.

The applicants sought full indemnity costs under a contractual provision in the franchise agreement, or alternatively partial indemnity costs.

The respondents argued the hours claimed were excessive and that reductions were warranted because several issues remained to be tried.

The court declined to award full indemnity costs, holding that the contractual clause did not displace the court’s discretion and there was no misconduct justifying elevated costs.

Partial indemnity costs were awarded with a portion payable immediately and the balance payable in the cause of the upcoming trial.

A dispute arose between owners of adjacent apartment buildings concerning access to a shared outdoor swimming pool and a garbage disposal facility located on the defendants’ property.

The plaintiff asserted that it held easement rights permitting continued use of the facilities based on the original design and joint development of the properties in the late 1960s.

The defendants argued the plaintiff had only a revocable licence and counterclaimed for trespass arising from construction activities on their land.

The court held that the evidence established an implied easement arising from the common intention of the original developers when the lands were severed and developed as a single complex.

The plaintiff therefore retained enforceable easement rights over the defendants’ land for both facilities, and the defendants’ trespass claim failed because the impugned acts were committed by independent contractors without the plaintiff’s control.

The defendant solicitors brought a motion for summary judgment to dismiss the plaintiffs' solicitor negligence claim as statute-barred under the Limitations Act, 2002.

The plaintiffs cross-moved, arguing the limitation period did not commence until a 2009 court decision confirmed the error in a real estate statement of adjustments.

The court found that a reasonable person in the plaintiffs' position would have known of the potential claim when a related lawsuit was commenced in September 2006.

The court granted the defendants' motion, dismissing the action as statute-barred and an abuse of process, and awarded costs to the defendants.