Spencer F. Toole

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.

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.

The landlord brought a motion to dismiss the tenant's appeal of a Landlord and Tenant Board order terminating the tenancy for non-payment of rent.

The tenant had not paid any rent since moving in and failed to comply with a Board consent order requiring payment of rent into the Board.

The Divisional Court found the appeal was completely devoid of merit, raised no genuine questions of law, and constituted an abuse of process designed solely to prolong a rent-free existence.

The motion was granted, the appeal was dismissed, the stay was vacated, and the landlord was awarded substantial indemnity costs.

The plaintiffs, owners of a fitness club, sued the defendants for alleged misrepresentations regarding the availability of parking spaces and for failing to provide adequate alternative parking during construction.

The defendants brought a motion for summary judgment.

The court found that the misrepresentation claims were barred by the 'four corners' clause in the lease agreement, the releases signed by the parties, and the expiry of the two-year limitation period, as there was no evidence of fraudulent misrepresentation or concealment.

The court also found no triable issue regarding the alternative parking, as the plaintiffs failed to provide sufficient evidence that membership cancellations were linked to parking issues.

The motion for summary judgment was granted and the claims against the moving defendants were dismissed.

The tenant brought a motion to set aside a Registrar's order dismissing her appeal for failing to file a transcript on time.

The landlord opposed the motion solely on the ground that the appeal lacked merit.

The court found that the appeal raised a valid question of law regarding whether the Landlord and Tenant Board erred in terminating the tenancy based on a breach of an order that had been stayed.

The court granted the motion, set aside the Registrar's order, and allowed the tenant 30 days to perfect her appeal.

The plaintiffs commenced Small Claims Court actions for dental malpractice more than two years after the date of the dental surgery, but within two years of the termination of the doctor-patient relationship.

The motion judge dismissed the defendant's motions to strike the claims as statute-barred, finding the limitation period ran from the end of the relationship.

On appeal, the Divisional Court reversed the decision, holding that there is no blanket rule tolling the limitation period until the end of the medical relationship.

Applying the presumption of discoverability under section 5(2) of the Limitations Act, 2002, the court found the limitation period commenced on the date of the surgery.

The actions were dismissed as statute-barred.

The landlords brought a motion to quash the tenants' appeal of a Landlord and Tenant Board eviction order and to lift the automatic stay.

The tenants had appealed the Board's refusal to grant an adjournment, which they requested because their legal representative was unprepared.

The Divisional Court found the appeal was devoid of merit, raised no question of law, and was an abuse of process intended solely to delay eviction while the tenants continued to pay no rent.

The motion was granted, the appeal was quashed, and the stay was lifted.

The appellant moved for a stay pending appeal of a Small Claims Court order that refused to set aside a judgment made after she failed to attend trial.

The appellant also sought to stay the enforcement of a writ of seizure and sale.

The Divisional Court dismissed the motion, finding that the appellant failed to meet the first branch of the RJR-MacDonald test because there was no serious issue to be decided.

The appellant had not complied with Rule 17(5) of the Small Claims Court Rules, which requires a motion to set aside a judgment to be brought within 30 days of becoming aware of it.

The plaintiff moved to continue a Mareva injunction freezing assets allegedly connected to a multi‑million dollar international fraud scheme.

One defendant opposed continuation of the injunction, arguing material non‑disclosure, delay, lack of evidence connecting the defendants to the fraud, absence of risk of dissipation of assets, and insufficiency of the plaintiff’s undertaking as to damages.

The court held that any alleged non‑disclosure regarding the plaintiff corporation’s status or its principal’s personal bankruptcy was not material and did not justify dissolving the injunction.

The court further found that the criteria for a Mareva injunction were met, including a strong prima facie case of fraud and a risk of dissipation of assets inferred from suspicious financial transfers.

The Mareva injunction was continued until trial or further order, subject to conditions requiring proof of the plaintiff corporation’s good standing and notice to the principal’s bankruptcy trustee.

Following a successful motion by the plaintiffs for non-party production of investigative materials from the Special Investigations Unit under Rule 30.10 of the Rules of Civil Procedure, the court addressed costs.

Although the plaintiffs obtained the production order, the court declined to award costs.

The court held that the SIU reasonably opposed the motion given its public policy mandate, confidentiality assurances to witnesses, and status as a non-party to the litigation.

The evidence and submissions from the SIU assisted the court in determining whether the exceptional remedy of non-party production should be granted.

An elderly condominium unit owner was allegedly injured when an unleashed dog owned by other residents attacked her on the condominium’s common elements.

The plaintiff sued the dog owners under the Dog Owners' Liability Act and the condominium corporation for negligence and under the Occupiers’ Liability Act.

The condominium corporation brought a Rule 21 motion to dismiss the action, arguing that the Dog Owners’ Liability Act exclusively governed liability and that it was not a dog owner or harbourer.

The court held that the Act does not preclude negligence or occupiers’ liability claims against a non‑owner of the dog and that it was not plain and obvious the claim against the condominium corporation could not succeed.

The motion to dismiss was therefore refused.