Stephen R. Jackson

The plaintiff, Vista Mortgage Capital Corporation, sought partial summary judgment for possession of mortgaged property against the defendants, Rachelle Adelle MacSweeney and her spouse Garrett Patrick MacSweeney.

The defendants argued the matter was not appropriate for summary judgment, that not all necessary parties were named, that the mortgage was invalid, and that the Farm Debt Mediation Act (FDMA) applied and had not been complied with.

The court found that summary judgment was appropriate, the correct parties were before the court, and the mortgage was valid.

However, the court held that the plaintiff failed to comply with the FDMA notice requirements before commencing proceedings, rendering the action a nullity.

The motion for summary judgment was dismissed and the claim struck, with no costs awarded.

The appellant appealed an application judge's order dismissing his application for a declaration regarding the allocation of surplus funds from a power of sale.

The application had been dismissed without prejudice to the appellant's right to bring a fresh application with proper notice and evidence.

The respondent brought a motion to quash the appeal, arguing the order was interlocutory and thus the Court of Appeal lacked jurisdiction.

The Court of Appeal agreed, finding that the order determined no substantive rights and was therefore interlocutory.

The appeal was quashed.

The defendant, Mark Varnam, brought a motion to set aside a noting in default, default judgment, and garnishment obtained by the plaintiff, Touranto (Canada) Holdings Limited, for rental arrears and damages.

Varnam argued he had a plausible excuse for default due to disabilities, being self-represented, lack of access to files, and pandemic-related business impacts, and that he had an arguable defence including payments made and Touranto's lack of cooperation with government assistance applications.

The court granted the motion, finding that Varnam provided a plausible explanation for his default and demonstrated an arguable defence, emphasizing the importance of ensuring justice for self-represented litigants and that default proceedings should not be used for tactical advantage.

The Applicant, a third mortgagee, sought a declaration of interest in land and the allocation of surplus funds from a power of sale, disputing the priority and validity of the second mortgage held by the Respondent Turton (a solicitor's mortgage).

The application was dismissed without prejudice due to the Applicant's failure to provide notice to the Property owner, whose interests were directly at stake, and the lack of sufficient evidentiary foundation from both the Applicant and Respondent Turton regarding the precise value of their respective mortgages at the relevant valuation date.

The plaintiff, Metropolitan Toronto Condominium Corporation No. 1049, brought a motion to strike the defendant's statement of defence for failure to retain counsel, or in the alternative, to compel them to do so, pursuant to Rule 15.01(2) of the Rules of Civil Procedure.

The defendant, a corporation, was represented by its sole officer and director, who had been disbarred.

The court found that the defendant failed to provide sufficient evidence of authorization or financial inability to retain counsel, and that the proposed representative's past professional misconduct raised concerns about protecting corporate interests.

The motion was granted, ordering the corporation to retain counsel within 30 days, failing which its statement of defence would be struck, and awarded costs to the plaintiff and third party.

The applicant sought a declaration to apply $73,152.50 of an unused leasehold allowance to offset rent owing under a commercial lease.

At the hearing, the respondent consented to the relief sought.

The court granted the declaration on consent and awarded the applicant partial indemnity costs of $24,216.44, noting that the applicant should not have been put to the trouble of preparing the application.

The plaintiff landlord claimed $425,000 for breach of a commercial lease but was awarded only $5,719.37 at trial.

In this costs decision, the plaintiff sought full indemnity costs of over $73,000, arguing complexity and a lease clause.

The defendant argued it was the successful party, having offered a settlement close to the final award, and sought costs in its favour or no costs for the plaintiff.

The court applied Rule 57.05(1) due to the judgment being within Small Claims Court jurisdiction, finding the case not complex enough to warrant Superior Court costs.

The court also noted the plaintiff's unreasonable refusal of a reasonable settlement offer and the defendant's deficient offer.

Ultimately, the court exercised its discretion to order no costs to be paid by or to either party.

The plaintiff landlord claimed damages for breach of a commercial lease after the defendant tenant abandoned the premises.

The court addressed five key questions: whether the landlord accepted repudiation prior to formal termination, whether leasing to another tenant (FroYo) constituted mitigation, whether the landlord took reasonable steps to mitigate damages both before and after deciding to sell the plaza, and whether the sale of the plaza ended the landlord's right to claim damages under the lease.

The court found that the landlord did not accept repudiation, took reasonable mitigation steps, and that the FroYo lease was a collateral transaction not constituting mitigation.

Crucially, the court determined that the sale of the plaza limited the landlord's claim for damages to the date of sale and dismissed the claim for diminution in sale price due to the vacancy.

The defendants moved for summary judgment to dismiss the plaintiff's trust claim regarding a 46.5-acre property.

The plaintiff alleged that the property, initially transferred to her minor daughter and later sold in two parts to the defendants' father, was held in trust for her.

The court found no genuine issue for trial, noting the plaintiff's lack of detailed supporting evidence, inconsistencies in her claims, and contradiction by documentary evidence and the third party's (the daughter's) testimony.

The court dismissed the plaintiff's claim, concluding that the defendants' narrative, supported by independent documentation and consistent evidence, was credible.

In an oppression remedy application, both the applicant minority shareholders and respondent majority shareholders brought motions regarding procedural delays.

The respondents sought to vary a previous consent order restricting corporate disbursements and to set a firm timetable.

The applicants sought reinstatement of interim compensation and an order for outstanding document productions.

The court granted both motions, removing the disbursement restriction, setting a firm timetable for the application, reinstating the applicant's monthly compensation, and ordering the respondents to provide specific financial records and authorizations.

The appellants purchased land near Sturgeon Lake and commissioned a survey indicating their property abutted land owned by the Long Beach Residents' Association.

They claimed that a portion of Long Beach's land between their property and the lake shore was originally part of their parcel and should be conveyed to them.

The application judge dismissed their claim, finding that Long Beach's property was originally a water lot conveyed to the federal government and that fill was deposited to construct a wharf, moving the shoreline eastward.

The Court of Appeal upheld this decision, finding the factual findings well-grounded in evidence and that survey monuments supported the boundary determination.

The court also dismissed the appellants' riparian rights claim, finding any such rights would have been extinguished under the Real Property Limitations Act.

Following a successful summary judgment motion by the defendant tenant, the court determined the costs of the proceeding.

The defendant had served a Rule 49 offer to settle and sought costs on a partial indemnity basis up to the date of the offer, and substantial indemnity thereafter.

The plaintiff landlord's costs submissions were found to be superficial and non-responsive.

The court awarded the defendant its claimed costs of $45,391.09, all inclusive.

This decision addresses costs of the proceedings below following a partial appeal success.

The appellants sought costs on a substantial indemnity basis, arguing they were substantially successful on the issues that drove the proceedings.

The respondents sought no costs or costs on a partial indemnity basis, arguing the success was divided.

The court found that while the appeal was allowed only in part, the appellants enjoyed greater success on the key issues and awarded costs on a partial indemnity basis, reflecting the divided success.

The appellants and respondents owned adjoining properties in Ontario.

A water pipeline was buried beneath the appellants' land in the 1960s to supply water from Sturgeon Lake to the respondents' property.

Three agreements were executed regarding the pipeline: in 1966 (a licence), in 1968 (a licence), and in 1979 (an easement registered as Instrument No. R147470).

In 2014, when the pipeline leaked, the respondent entered the appellants' land without permission and installed an above-ground waterline.

The appellants sought a declaration that the respondents had no interest in their property and that the easement was invalid.

The respondents sought a declaration that the easement was valid and that they had the right to repair and replace the pipeline.

The application judge found both the 1968 and 1979 agreements granted easements and that the respondents could repair and replace the pipeline.

The appellants appealed, arguing the 1968 agreement was a licence, not an easement, and that the 1979 easement did not permit repairs or replacement without their consent.

The plaintiff landlord sued the defendant tenant for outstanding Additional Rent and damages for disrepair after the commercial lease expired.

The tenant brought a motion for summary judgment to dismiss the action and for the return of its security deposit.

The court found that the landlord failed to comply with the lease's mandatory notice provisions for Additional Rent for the years 2012-2014, barring those claims.

The landlord's claim for 2015 Additional Rent was allowed as it was made within the required timeframe.

The court also dismissed the landlord's repair claim, finding insufficient evidence that the premises were left in disrepair.

Summary judgment was granted to the tenant for the return of its security deposit less the 2015 Additional Rent.

The applicants sought a declaration that an easement for a water pipe across their property, benefiting the respondents' adjacent property, was invalid.

The respondents counter-applied for a declaration that the easement was valid.

The court found that historical documents from 1968 and 1979 were intended to create an easement, not a mere license.

Although the 1979 document initially violated the subdivision control provisions of the Planning Act, the court held that subsequent conveyances containing prescribed solicitor statements triggered the curative provision in s. 50(22) of the Planning Act, validating the easement.

The applicants' argument under the Registry Act was also dismissed because the properties had been converted to the Land Titles system.

The application was dismissed and the counter-application granted.