Spencer F. Toole

The Court of Appeal for Ontario heard an appeal regarding a commercial lease dispute.

The appellant landlords re-entered the leased premises after the respondent tenants defaulted on rent.

The application judge found the re-entry wrongful due to a defective notice and premature action.

The Court of Appeal reversed this decision, finding that the landlords were entitled to re-enter based on a prior, continuing breach of the lease, specifically the failure to pay accelerated rent as per a non-waiver clause.

The Court emphasized that the landlords had not waived the breach by accepting partial payments.

The trial judge's order was set aside, and the original application dismissed.

The tenant appealed an eviction order from the Landlord and Tenant Board, arguing he did not know disconnecting his fire alarm was illegal and that he missed the initial hearing because his agent cancelled.

The Divisional Court dismissed the appeal, finding no error of law.

The court noted the tenant failed to raise the knowledge issue before the Board and had a reasonable opportunity to participate in the initial hearing.

The tenant appealed a procedural order of the Landlord and Tenant Board directing that the matter proceed in writing.

The tenant, who had requested accommodation for serious disabilities, objected to the tight timeline for submitting materials.

The Divisional Court dismissed the appeal, finding the Board's decision to proceed in writing was reasonable and procedurally fair.

However, the court issued directions establishing a new, extended schedule for the exchange of evidence and written arguments.

The appellants appealed a Superior Court decision granting the condominium corporation an order to enter and inspect a unit following a complaint about noise emanating from the staircase.

The appellants denied entry and issued a trespass notice.

The appellants raised seven grounds of appeal in their factum but narrowed their argument at hearing to a single contention that there was no evidentiary basis for the condominium board to carry out an inspection.

The Court of Appeal dismissed the appeal, finding that the condominium corporation had a right and duty under the Condominium Act to ensure compliance with legislation and to inspect the unit to gather information about the nature and extent of the suspected problem.

The tenant brought an application against the landlord for a declaration that a notice of termination was void, an accounting of distrained assets, and the release of seized property.

The landlord had re-entered the commercial premises after issuing a notice of default for rent arrears, but did so before the notice period stipulated in the lease had expired.

The court found the re-entry and termination unlawful, as the parties had contracted out of the statutory 15-day default period in favour of a specific notice period.

The court ordered the landlord to release the tenant's property and directed a trial of an issue to determine the tenant's damages.

The tenant appealed an eviction order from the Landlord and Tenant Board and brought a motion to be restored to possession of the rental unit after the landlord had already taken possession.

The court treated the motion as a request for an interlocutory injunction.

The court found the tenant could not establish a 'serious issue to be tried' because he had abandoned both the original hearing and the review hearing.

Furthermore, the court held it lacked jurisdiction to restore possession in the face of a lawful eviction order enforced before the appeal and stay order were issued.

The motion was dismissed.

The applicant, Metropolitan Toronto Condominium Corporation No. 1328, sought full indemnity costs after successfully obtaining an order permitting entry into a condominium unit owned by 2145401 Ontario Inc. and occupied by Paul Starkman.

The respondents opposed, arguing for partial indemnity costs based on usual civil procedure principles.

The court, exercising its discretion under the Courts of Justice Act and Rule 57.01, awarded the applicant partial indemnity costs of $10,000 in fees and $827.06 in disbursements, inclusive of HST, finding that while the applicant was wholly successful, neither party was blameless in the underlying dispute, and the condominium's indemnity provisions did not mandate full indemnity for legal costs.

The tenants appealed a Landlord and Tenant Board decision dismissing their request to review an eviction order.

Following the eviction order for the landlord's own use, the parties signed an agreement extending the move-out date.

The tenants argued this agreement, which allegedly included a $10,000 payment, created a new tenancy.

The Divisional Court upheld the Board's finding that the agreement was a forbearance agreement under section 45(b)(iii) of the Residential Tenancies Act and did not create a new tenancy.

The appeal was dismissed.

The applicant condominium corporation sought an order permitting it to enter the respondents' unit to inspect a staircase following noise and vibration complaints from the unit below.

The respondents refused entry, issued a trespass notice, and argued the request was unreasonable, made in bad faith, and statute-barred.

The court granted the application, finding the corporation had a statutory right and duty to inspect the unit upon reasonable notice, the application was not statute-barred, and prior mediation/arbitration was not required for disputes enforcing the Condominium Act.

The tenant appealed an eviction order issued by the Landlord and Tenant Board for non-payment of rent.

The tenant had attempted to void the eviction order with an uncashable cheque, which the Board found insufficient.

The landlord moved to quash the appeal, arguing it was devoid of merit, delayed, and an abuse of process to benefit from the automatic stay.

The Divisional Court agreed, finding no valid question of law, unexplained delay in perfecting the appeal, and an abuse of process.

The appeal was quashed and substantial indemnity costs were awarded to the landlord.

The applicant law firm sought a declaration of entitlement to $32,100 held in trust by the respondent law firm, representing unpaid legal fees for services provided to a former client.

The respondent estate argued the claim was statute-barred and the applicant lacked standing.

The court found the respondent law firm's undertaking to protect the account was binding on the estate and stopped the limitation period from running.

The court declared the applicant entitled to payment subject to an assessment of the account, finding special circumstances warranted an extension of the statutory time limit for assessment due to the lack of particularity in the account and mutual delay.

The plaintiff moved for default judgment against the defendants for breach of a factoring agreement.

The defendants had previously delivered a Notice of Intent to Defend, but the plaintiff noted them in default without further notice or requesting a Statement of Defence.

The court found it unreasonable to note a self-represented party in default without notice after they had indicated an intent to participate.

The motion for default judgment was dismissed, the noting in default was set aside, and a timetable was established for the defendants to file a defence.

A condominium corporation appealed from a damages award of $18,000 and sought leave to appeal a costs award of $17,000 made under section 134(5) of the Condominium Act, 1998.

The respondent unit owners had leased their condominium to tenants who vandalized common elements.

The corporation claimed $33,381.28 in damages and $52,637.56 in costs.

The application judge found certain repair expenditures disproportionate and reduced the damages award.

The Court of Appeal allowed the appeal, finding the application judge erred in assessing security camera installation costs and in conflating two distinct types of costs under the Act.

The damages award was increased to $25,458 and the costs award was increased to $34,000.

The moving party/appellant brought a motion for an order staying an earlier order of the Associate Chief Justice, which had refused to extend the time to perfect her appeal and quashed the appeal of a Landlord and Tenant Board eviction order.

The appellant had not paid rent for over 15 months.

The court applied the test for a stay, finding no serious issue, no irreparable harm, and that the balance of convenience favoured the new landlord who required the premises for personal use.

The motion was dismissed with costs awarded to the respondent.

Following the release of a decision on an appeal, the parties attended before the Registrar to settle the order.

The appellant and the respondent each provided a version of the order.

The judge directed the Registrar to sign the respondent's version as it reflected the decision.

The appellant subsequently attempted to appear before the judge to settle the order.

The judge held that the order had been settled and the proceeding was at an end.

The appellant tenant appealed an order of the Landlord and Tenant Board terminating her tenancy so the purchaser could move in.

The appeal automatically stayed the eviction, allowing the appellant to live rent-free for 14 months.

The appellant failed to perfect the appeal, claiming she could not afford the transcripts, and moved for an extension of time.

The Divisional Court dismissed the motion and quashed the appeal, noting the appellant had saved approximately $21,000 in rent and failed to provide proper proof that the transcripts had been ordered.

The appellant tenant appealed a Landlord and Tenant Board decision finding his rental unit exempt from the Residential Tenancies Act under section 5(i).

When the tenancy began, the appellant shared a kitchen and bathroom with the respondent landlord's daughter, whom he later married.

The Divisional Court dismissed the appeal, holding that the Board reasonably determined the exemption applied based on the facts at the time the tenancy agreement was entered into, and the appellant could not unilaterally change the legal nature of the relationship.

The landlord brought a motion to quash the tenant's appeal of a Landlord and Tenant Board eviction order.

The tenant had accumulated significant rent arrears and failed to perfect his appeal or pay rent since the termination order was made.

The court found that the notice of appeal raised no arguable grounds and was filed solely to delay eviction and allow the tenant to live rent-free.

The motion was granted, the appeal was quashed as an abuse of process, and the stay of eviction was set aside.

The plaintiff tenant sought a declaration that a restrictive clause in its commercial lease prevented the landlord from leasing space in the plaza to a Tim Hortons franchise.

The court was tasked with interpreting the restrictive clause, specifically whether it should be construed statically (comparing to the tenant's business in 1991 when the clause was introduced) or dynamically (comparing to the current tenant's business).

The court adopted a static interpretation, finding that the proposed Tim Hortons business was not of a similar nature to the original "Corner Restaurant" in terms of menu and eat-in seating facilities.

Even under a dynamic interpretation, Tim Hortons was found not to be similar to the current "Wimpy's" restaurant.

The motion for the declaration was dismissed, and the defendant was awarded costs.

The tenant brought a motion to vary or set aside an order of a single judge that dismissed his appeal of a Landlord and Tenant Board eviction order and vacated the stay of eviction.

The tenant argued the motion judge erred by failing to consider evidence explaining his non-compliance with an interim consent order and by finding no merit to his appeal despite the Board refusing to hear his evidence on premises deficiencies.

The Divisional Court dismissed the motion, finding no error of law or palpable and overriding error of fact.

The court noted the tenant's counsel did not attempt to present the non-compliance evidence before the motion judge, and the Board had the authority to refuse evidence of deficiencies once the tenant breached the interim consent order.