Stephen F. Waqué

Following a motion concerning vesting of lands and alleged contempt of a prior order in estate litigation, the court addressed the issue of costs.

The moving party had been substantially successful in obtaining the primary relief sought, though the contempt finding was not granted.

The court considered the discretionary principles under s.131 of the Courts of Justice Act and the factors in Rule 57.01 of the Rules of Civil Procedure, as well as the effect of a prior offer to settle under Rule 49.

Although the moving party sought higher costs based on substantial indemnity following its offer to settle, the court found some merit in the responding party’s position and noted the matter primarily served to bring closure to a long-standing dispute.

Costs were therefore fixed in a reduced amount.

The estate trustee during litigation brought a motion seeking a vesting order to implement transfers of land and easements required by a prior settlement order, and also sought a contempt finding against the respondent for failing to provide instructions necessary to complete registration.

The dispute concerned the location of a pedestrian right-of-way to the waterfront that the respondent argued was impractical due to steep terrain.

The court held that the respondent had entered into the settlement with knowledge of the terrain and had failed for several years to bring any motion to vary or clarify the order.

While the vesting order should be granted to implement the nearly six-year-old order, the court was not satisfied that the respondent had deliberately disobeyed a clear and unequivocal order.

Accordingly, contempt was not established beyond a reasonable doubt.

The parties brought competing applications seeking the court’s direction regarding the interpretation of provisions in a commercial lease governing the determination of fair market land value for rent recalculation.

The lease required each party to appoint an appraiser and, if the resulting valuations differed by more than ten percent, for the two appraisers to jointly select a third appraiser.

After conflicting valuations triggered the third-appraiser mechanism, the tenant proposed altering the process to appoint a legally trained decision-maker who was not a licensed appraiser.

The court held that the lease clearly required the appointment of a qualified appraiser experienced in valuing commercial property in Toronto and that the proposed alternative would improperly amend the agreement without the landlord’s consent.

The court therefore directed that the previously identified qualified appraiser be appointed to proceed with the appraisal process.