Ronald B. Moldaver Q.C.

This appeal and cross-appeal arose from a landlord's application for a writ of possession and related disputes over a security deposit and roof repair costs.

The Court of Appeal allowed both the landlord's appeal regarding the interpretation of a lease clause concerning the return of a security deposit and the tenant's cross-appeal concerning the amortization of roof replacement costs.

The court found the application judge erred in interpreting the deposit clause, as the deposit was only returnable if the tenant was not in default, which they were.

The court also found the application judge failed to address the tenant's argument that the roof replacement was a capital expense to be amortized over its useful life, not just two years.

The relevant paragraphs of the lower court's judgment were struck, and no costs were awarded due to mixed success.

Following a successful motion in a construction lien action to refer the matter to a master, the plaintiff sought costs on a substantial indemnity basis or alternatively on a partial indemnity basis.

The defendant argued that a reduced costs award was appropriate and disputed the plaintiff’s claimed amounts.

The court held that substantial indemnity costs were not justified, noting that the defendant’s conduct in seeking an adjournment due to a religious holiday was not reprehensible and that the plaintiff’s settlement offer was not bettered by the motion result.

Considering potential duplication of legal work and all surrounding circumstances, the court awarded a reduced lump sum costs amount.