Scott R. Fairley

The plaintiffs purchased an HVAC business from the defendants and subsequently sued for breach of contract, alleging the defendants failed to operate the business in the ordinary course prior to closing.

The plaintiffs claimed the defendants failed to disclose slumping sales, employee layoffs, and deteriorating customer relationships.

The court dismissed the plaintiffs' claim, finding they failed to prove the changes were outside the ordinary course of business or not the result of a general deterioration in the HVAC market.

The court further held that even if a breach occurred, the plaintiffs were entirely responsible for their damages because they failed to exercise their contractual right to investigate the company's financial affairs before closing.

The defendants' counterclaim for the balance owing on a promissory note was allowed.

The plaintiffs brought a motion for summary judgment arising from the defendants' failure to close on the purchase of a residential property for $1,900,000.

The defendants admitted the breach but argued the matter was not suitable for summary judgment and that the plaintiffs failed to mitigate their damages.

The court found no genuine issue requiring a trial, holding that the plaintiffs acted reasonably in reselling the property and in settling a downstream claim from the vendors of a second property the plaintiffs could not close on due to the defendants' breach.

Summary judgment was granted for $556,535.41, comprising the difference in sale price, carrying costs, the forfeited deposit on the second property, and the settlement amount paid to the second vendor.

A stay of enforcement pending the third-party action was denied.

Following a lengthy contract dispute where the defendant was wholly successful, the defendant sought costs against the plaintiff.

The court found that the plaintiff had registered a grossly inflated construction lien, failed to make or accept reasonable settlement offers, refused to admit facts, and engaged in spoliation of evidence.

Applying the costs provisions of the Construction Lien Act and the Rules of Civil Procedure, the court awarded the defendant substantial indemnity costs of $135,000.

The court declined to hold the plaintiff's principal personally liable for costs as he was not a party to the proceeding and no finding of fraud was made against him.

The plaintiff subcontractor sued the defendant contractor for unpaid invoices and registered a construction lien regarding a school gymnasium project.

The defendant counterclaimed for back charges due to the plaintiff's delays and failure to complete the contracted steel fabrication and erection work.

The court found the plaintiff breached the contract by failing to perform the work on schedule, entitling the defendant to back charges.

The court awarded the plaintiff a reduced amount of $20,000, calculated as the remaining contract balance less the defendant's proven back charges.

The applicants applied under the Boundaries Act to confirm the boundary between their property and the objectors' property based on a mathematical calculation of a forty-acre parcel.

The objectors argued the boundary should follow an old wire fence that had been in place since before the original severance in 1950.

The Deputy Director of Titles dismissed the application and allowed the objection, finding that the old wire fence was an original monument accepted by the parties at the time of the severance.

Applying the hierarchy of evidence, the tribunal held that the fence and its projection to the road allowance represented the best available evidence of the boundary, rather than a theoretical mathematical calculation.

The applicants appealed the Township's refusal of a zoning by-law amendment to permit the replacement of an existing cottage and bunkhouse with a larger dwelling on an undersized waterfront lot.

The proposed development required variances for lot coverage, gross floor area, width, and front yard setback.

The Tribunal found that the proposal, subject to an increased 15-metre front yard setback, constituted a net improvement over the existing development, conformed to the District and Township Official Plans, and represented good planning.

The appeal was allowed in part to approve the amendment with the modified setback.

The appellants appealed the Township of Georgian Bay's refusal to grant a zoning by-law amendment to permit the replacement of an existing dwelling with a larger one.

At the first Case Management Conference, the parties indicated they were engaged in resolution discussions but requested a hearing date be set.

The Tribunal issued a Procedural Order and scheduled a three-day video hearing.

The plaintiff brought a motion for summary judgment for damages arising from an aborted real estate transaction.

The defendants admitted to breaching the agreement of purchase and sale but argued the plaintiff failed to mitigate his damages when he resold the property for a lower price in a falling market.

The court heard expert appraisal evidence from both parties.

The court found the defendants failed to prove the plaintiff acted unreasonably in mitigating his damages, noting the property was sold on the open market after reasonable exposure.

Summary judgment was granted in favour of the plaintiff for $111,702.58, representing the difference in sale prices plus carrying costs, less the deposit.

Following a bifurcated trial regarding the departure of financial advisors and the valuation of a business, the successful plaintiffs sought costs.

The court found that while formal Rule 49 offers were not triggered, the defendants' reprehensible and deceitful conduct prior to litigation, as well as their refusal to admit facts during the trial, warranted an enhanced costs award.

Costs were fixed at $160,000, payable jointly and severally by two of the defendants.

A third defendant, against whom liability was found but no damages were sought, was not held liable for costs.

Following a successful application for judicial review where the impugned regulation was declared ultra vires but Charter claims were dismissed, the applicants sought costs of $153,499.07 on a partial indemnity basis.

The respondents argued for no costs or a maximum of $35,000.

The Divisional Court found the applicants' requested costs excessive given it was a one-day hearing and a large portion related to unsuccessful Charter claims.

The court fixed costs at $50,000 all inclusive.

The plaintiff, an unsophisticated lender, brought a motion for summary judgment to recover unpaid loans made to the defendants.

The defendants argued the acknowledgment of debt was unconscionable due to a 60 percent interest rate and lack of legal representation, and denied fraudulent misrepresentation.

The court granted summary judgment, finding no unconscionability as the defendant had proposed high interest rates initially and refused legal counsel.

The court also found the defendant engaged in fraudulent misrepresentation regarding the company's finances to induce the initial loans, awarding the plaintiff the principal amounts plus 60 percent interest.

The applicants sought judicial review of an Ontario regulation that discontinued the reimbursement of out-of-country medical expenses under the provincial health insurance plan.

The Divisional Court found that the regulation clearly violated the portability criterion of the Canada Health Act, which would disqualify Ontario from receiving a full federal cash contribution.

Because the Health Insurance Act explicitly prohibits the Lieutenant Governor in Council from making regulations that would cause such disqualification, the impugned regulation was declared ultra vires.

The applicants' Charter challenges under sections 7 and 15 were dismissed.

Your Neighbourhood Credit Union (YNCU), a non-party and first mortgagee, moved to set aside a prior judgment (Hainey J.) that granted an easement over its mortgaged lands, alleging lack of notice.

The motion was held in abeyance pending an appeal of a similar judgment (Conway J.), which was subsequently overturned by the Court of Appeal, finding no legal entitlement to an easement.

The court found YNCU's motion, continued by its assignee Silsym Inc., met the "forthwith" requirement of Rule 38.11 despite delays.

Given the Court of Appeal's ruling on similar facts, the court concluded there was no entitlement to the easements granted by the Hainey Judgment and allowed the motion, setting aside the judgment.

Costs were fixed at $20,000 for the moving party.

The respondents operated a fitness club business through a corporate entity and agreed to sell the business to the appellants through an Asset Purchase Agreement dated October 30, 2015.

The agreement required the purchaser to assume approximately $58,000 in equipment and leasehold improvement loans.

After taking possession and operating the business, the appellants refused to sign the required promissory note, stopped payment on a cheque, and immediately defaulted on lease obligations, triggering the respondents' personal liability.

The motion judge found the corporate purchaser liable for breach of contract and pierced the corporate veil to hold the individual appellants personally liable for fraudulent conduct.

The appellants appealed on three grounds, all of which were dismissed.

The plaintiffs, having succeeded in a 19-day trial and obtained judgment for $614,624 plus $30,000 in punitive damages, sought costs on a partial and substantial indemnity basis totaling $531,272.25.

The defendants argued the costs were excessive, particularly for motions resolved by consent and for alleged over-preparation.

The court, applying principles of reasonableness and the objectives of modern costs rules, reduced the partial indemnity costs for consent motions and the substantial indemnity costs for trial preparation, finding over-preparation.

The court awarded total costs of $353,109.53, including fees and disbursements.

The plaintiffs, V.P.M. Marketing and Media Consulting Inc. and Patricia Mitchell, sued the defendants, Stephen Jenne, Barbara Jenne, and BAMS Marketing Inc., for breach of contract, fiduciary duty, and interference with economic relations, seeking damages and punitive damages.

The defendants counterclaimed for unpaid commissions.

The court found Stephen Jenne to be a dependent contractor who owed and breached fiduciary duties and the duty of good faith to VPM by secretly orchestrating the transfer of VPM's clients to his own company, BAMS Marketing Inc., after the death of VPM's founder.

The court awarded the plaintiffs $614,624 in compensatory damages for lost profits and $30,000 in punitive damages.

The defendants' counterclaim was dismissed due to lack of proof, the application of the Limitations Act, and laches/acquiescence.

The appellants appealed a motion judge's decision regarding their right of access to waterfront property through membership in Cedar Ridge Waterfront Park Corporation (CRRC).

The motion judge found a common intention that lot purchasers would have water access through CRRC membership.

The Court of Appeal allowed the appeal, holding that the right of access was contractual in nature, not an easement or easement by estoppel.

The court found that the documentation and circumstances were inconsistent with the creation of an easement, including the requirement to assign membership to subsequent purchasers and the absence of typical easement indicia such as metes and bounds descriptions.

The plaintiff sought a declaration of sole beneficial ownership of a residential property, alleging her brother, the defendant, held title as a bare trustee.

The defendant counter-claimed for a declaration of co-ownership as a joint tenant with a beneficial interest.

The court found the defendant to be more credible, concluding that he acquired a beneficial interest in the property by purchasing the ex-boyfriend's share, assuming the mortgage, and making significant contributions to improvements and arrears, which were inconsistent with acting as a bare trustee or making gratuitous payments.

The court dismissed the plaintiff's claim and granted the defendant's declaration of 50% legal and beneficial ownership, subject to an accounting.

This addendum on costs addresses the quantum of costs following a trial judgment.

The Plaintiffs by counterclaim sought $59,582.17, while the Defendant by counterclaim proposed $20,630.00.

The court applied Rule 57 of the Rules of Civil Procedure and principles from appellate cases, emphasizing that costs awards must be fair and reasonable, reflecting what the unsuccessful party should pay rather than the successful litigant's actual costs.

Considering factors such as time spent, counsel experience, rates, result achieved, complexity, conduct, and proportionality, the court awarded the Plaintiffs by counterclaim $45,000.00, inclusive of fees, disbursements, and HST.

The plaintiff contractor was previously found liable by summary judgment for breach of contract and negligence regarding deficient basement waterproofing and property damage, including severing a main hydro line.

In this trial of an issue to assess damages on the defendants' counterclaim, the court rejected the plaintiff's argument for a diminution in value approach, applying the cost of repair.

The court assessed damages for the return of the initial payment, electrical repairs, living expenses, landscaping, and exterior cladding replacement, awarding the defendants $167,201.62.