Ronald B. Moldaver

The appellants appealed the imposition of two conditions on an order for the partition and sale of a commercial property, while the respondents cross-appealed seeking to reverse the order for sale.

The Divisional Court upheld the finding of co-ownership but set aside the condition requiring the prior payment of $1 million, finding that conflicting evidence regarding payment required a trial.

The court held that the sale could not proceed until the issues of payment and alleged oppression were resolved at trial.

Both the appeal and cross-appeal were allowed in part.

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

The Court of Appeal dismissed the appeal, finding that the trial judge gave careful and comprehensive reasons, and her analysis of the facts and case law was impeccable.

Costs were awarded to the respondents in the amount of $20,000.

The tenants appealed an eviction order and a jurisdictional ruling made by the Landlord and Tenant Board.

The Divisional Court granted the appeal and remitted the matter for a new hearing before a differently constituted Board.

The Court found that meaningful appellate review was impossible due to a malfunction that resulted in missing transcripts for a full day of evidence, combined with the Board member's failure to provide adequate reasons for her decision.

The applicant sought judicial review of an Ontario Racing Commission decision that upheld Woodbine Entertainment Group's (WEG) indefinite suspension of his racing privileges.

The suspension followed the discovery of Erythropoetin (EPO) in three of the applicant's horses.

The Divisional Court dismissed the application, finding that the Commission reasonably balanced WEG's private property and contractual rights with the public interest in maintaining the integrity of the horse racing industry.

The appellant appealed a decision regarding adverse possession of a disputed strip of land between two properties.

The Court of Appeal upheld the application judge's finding that the respondent regularly used the disputed strip at the front of the houses, defeating the claim for adverse possession there.

However, the Court found that the application judge failed to address the back of the house, where a fence excluded the respondent and established exclusive possession for the appellant.

The judgments were amended accordingly, with costs awarded to the respondent who was substantially successful.

The appellant appealed a trial judgment regarding the ownership of lands under the Riverside Drive bridge and allegations of bad faith.

The Court of Appeal upheld the trial judge's findings that the road was a busy public road in the 1880s, the railway never intended to acquire the land under the bridge, and the road was a municipal street owned by the City.

The appellant's argument that the federal Crown owned the land was rejected, as the road was not an unopened road allowance laid out by a Crown surveyor.

The appeal was dismissed with costs.

The applicant sought judicial review of a decision by the Ontario Racing Commission finding him liable for a strict liability drug offence involving a racehorse.

The Divisional Court allowed the application and quashed the Commission's decision, finding that the Commission failed to identify any evidence that the applicant's conduct fell below a reasonable standard of care.

The court noted that the Commission appeared to have improperly applied a standard of absolute liability rather than strict liability.

The appellants, who were discharged bankrupts, sought to appeal a declaration validating mortgages on their properties.

The respondent mortgagee brought a motion to quash the appeal on the basis that the appellants lacked standing.

The Court of Appeal allowed the motion to quash, finding that the properties remained vested in the trustee in bankruptcy.

Although the trustee took no position on the appeal and consented to the appellants proceeding, it had not abandoned its interest in the properties under section 40(1) of the Bankruptcy and Insolvency Act.

The appellant made an assignment in bankruptcy in 1994 and was discharged in 1996.

Years later, the trustee in bankruptcy learned the appellant may have failed to disclose an interest in real property and obtained an order reappointing the trustee.

On appeal, the Court of Appeal held that the bankruptcy judge erred by deciding the matter in a summary proceeding given the conflicting evidence and credibility issues.

The appeal was allowed and a trial of an issue was ordered to properly determine the ownership of the property.

The appellant landlord appealed an order permitting a receiver to take over the tenant's position under a commercial lease.

The landlord argued the motion judges exercised their discretion in an unprincipled way and that there was material non-disclosure on a without notice motion.

The Court of Appeal dismissed the appeal, finding the receivership order justly balanced the interests of the employees and the landlord, as the landlord was receiving rent and had not shown prejudice.

The court also found no palpable and overriding error in the finding of no material non-disclosure.

The appellant bank appealed an order dismissing its action on the basis of res judicata.

The Court of Appeal upheld the motion judge's finding that a prior determination by another judge, which concluded the property was validly held in trust, subsumed the issue of whether the trust was a sham.

The appeal was dismissed with costs.

The appellant general contractor entered into a construction contract and a subcontract with the respondent for a fire protection system.

The appellant was contractually obligated to obtain all-risks property insurance and fire insurance but failed to do so.

A flood occurred due to the respondent's admitted negligence.

The appellant paid the owner for the damages and sought to recover the amount from the respondent.

The Court of Appeal dismissed the appeal, applying the principle that a contractual undertaking to secure property insurance operates as an assumption of the risk of loss or damage caused by the peril to be insured against.

The appellant's failure to obtain the insurance precluded its claim against the respondent.

The appellant challenged the sale of a cemetery by the Ontario Realty Corporation to a private company proposing to build a crematorium, seeking judicial review of the Director's decision to issue a certificate of air approval and the ORC's environmental assessment.

The Divisional Court dismissed the application.

On appeal, the Court of Appeal affirmed the Divisional Court's decision, finding that the Director's decision was not patently unreasonable and that the ORC correctly concluded it was not required to apply its class environmental assessment process to the purchaser's subsequent planning actions.

The appeal was dismissed with costs.

The appellant appealed a decision granting an application for partition and sale of commercial properties under the Partition Act.

The appellant argued that the scope of discretion to refuse partition and sale should be broadened beyond circumstances of malice, oppression, and vexatious intent.

The Court of Appeal dismissed the appeal, affirming that co-tenants have a prima facie right to compel partition or sale, which should only be refused in limited circumstances including hardship amounting to oppression.

The court found no palpable and overriding error in the motion judge's exercise of discretion.

The appellant appealed an order of the Superior Court of Justice, arguing the judge lacked jurisdiction and erred in awarding costs.

The Court of Appeal dismissed the appeal, finding that the appellant's consent effectively amended the right to seek the court's assistance under the arbitration agreement, which, along with Rule 14.05, provided ample jurisdiction.

The court found no error in principle in the costs award.

The appellant appealed a trial judge's order permitting the respondent to withdraw an admission regarding damages after two and a half days of trial.

The trial judge had ordered a mistrial and awarded the appellant costs thrown away to allow them to consider their position.

The Court of Appeal dismissed the appeal, finding that the trial judge's order was a discretionary one that caused no prejudice to the appellant.

The appellant landlord appealed a trial judgment that applied a 35 per cent 'betterment' discount to damages awarded for the respondent tenant's breach of repair and restoration covenants in a commercial lease.

The Court of Appeal held that while the lease's 'reasonable wear and tear' exception applied, the tenant bore the burden of proving the extent to which the damages fell within this exception.

Because the tenant failed to adduce evidence supporting the 35 per cent discount, the Court removed the discount, increasing the landlord's damages.

The Court also allowed the tenant's cross-appeal in part, reducing the interest rate to the Courts of Justice Act rate and reducing the costs award to reflect the actual rates billed to the landlord.

The appellant appealed a trial judgment finding him jointly and severally liable for over $325,000 wrongfully obtained from an elderly relative's estate.

The trial judge found the appellant knowingly assisted other family members in breaching their fiduciary duties by preparing a power of attorney and commissioning a land transfer tax affidavit while knowing the relative was incompetent.

On appeal, the appellant argued the respondents lacked standing under the Trustee Act and that his actions did not cause the loss.

The Court of Appeal dismissed the appeal, refusing to entertain the standing and limitation arguments raised for the first time on appeal, and upholding the finding of knowing assistance.

A cross-appeal seeking occupation rent from the appellant was also dismissed.

The applicant, a residents' association, sought judicial review of decisions by the Ministry of the Environment and the Ontario Realty Corporation relating to the sale of a former psychiatric hospital cemetery to a private purchaser who intended to build a crematorium.

The applicant argued that the MOE Director erred in issuing an air approval without considering fine particulate emissions and that the ORC failed to conduct a proper environmental assessment under the Environmental Assessment Act.

The Divisional Court dismissed the application, finding that the Director's decision was not patently unreasonable given the lack of existing standards for fine particulates at the time, and that the ORC reasonably applied its Class Environmental Assessment, which did not require assessing the private purchaser's subsequent planning actions.

The appellant tenant breached a commercial lease by abandoning the premises.

The respondent landlord subsequently leased the property to a new tenant, with a 10-month overlap of the original lease term.

The tenant appealed the trial judge's calculation of damages, arguing the landlord received a benefit from avoiding a lengthy vacancy period.

The landlord cross-appealed regarding the deduction of tax consultant fees and the apportionment of rent-free periods and improvements.

The Court of Appeal dismissed the main appeal, finding the tenant's mitigation argument was not pleaded and relied on speculation.

The cross-appeal was allowed in part, permitting the landlord to deduct the 50% contingency fee paid to a tax consultant to obtain a property tax rebate.