Scott R. Fairley

Following a prior partial judgment concerning interpretation of a commercial lease, the court addressed the landlord’s accounting for additional rent allegedly representing property management and maintenance expenses.

The lease did not permit standardized management or administrative fees, and the landlord bore the onus of proving reasonable and proper expenses actually incurred.

The court found the landlord’s records unreliable and insufficient, noting undated documents, inconsistent time sheets, duplicated entries, and indications that records were retrospectively created.

Because the landlord failed to demonstrate that the claimed work was performed or that the charges reflected commercially reasonable costs, most management-related claims were disallowed.

The court concluded the tenant had overpaid additional rent over four years and ordered a refund of $128,712.31, with costs submissions to follow.

The defendants moved to set aside a default judgment obtained in a mortgage action.

Applying the three-part test under Rule 19.08 of the Rules of Civil Procedure—delay, explanation for default, and arguable defence—the court found the circumstances surrounding service explained the default and accepted the delay as largely attributable to litigation scheduling and negotiations.

However, the defendants failed to demonstrate a defence on the merits to the existence of the debt under the registered mortgage.

The court declined to set aside the default judgment but ordered a trial of an issue in the nature of a reference to address apportionment issues arising from the broader financial relationship between the parties.

The appellant hospital appealed a partial summary judgment awarding the respondent architectural firm over $1 million in a construction lien action.

The motion judge had relied on an 'admission' letter sent by the hospital following a pre-trial conference.

The Divisional Court allowed the appeal and set aside the summary judgment, finding that the motion judge erred by relying on the pre-trial communication contrary to Rule 50.03 of the Rules of Civil Procedure.

The Court also found that affidavit evidence from a peer-review architect raised a genuine issue for trial regarding the completion of the contract and the validity of the invoices.

The appellants appealed a decision dismissing their appeal of a No Permit Order issued by a municipal building inspector regarding the construction of a front deck.

The inspector had measured the deck mid-construction and found it exceeded the two-foot height exemption for building permits.

The Divisional Court allowed fresh evidence showing the completed deck met the height requirements.

The Court held that the appropriate time for inspection was upon completion of the project, not mid-construction, and found the lower court's decision unreasonable.

The appeal was allowed, the No Permit Order rescinded, and costs awarded to the appellants.