Steven D. Gadbois

The parties, who are neighbours, engaged in a protracted dispute over a minor encroachment of a concrete driveway pad across their property line.

The plaintiffs sued for nuisance and loss of quiet enjoyment, while the defendants counterclaimed for diminution of property value.

The Superior Court of Justice dismissed both claims for damages, finding the encroachment trivial and the plaintiffs' actions unreasonable, while the defendants failed to prove causation for any property value loss.

The court issued a declaration establishing the property line according to a 2020 survey and ordered each party to bear their own costs.

The applicant sought a declaration that she owned a narrow strip of land (approximately 7 feet by 41 feet) located behind the respondents' garage through adverse possession.

The applicant claimed to have adversely possessed the strip between 1998 and 2008, prior to the conversion of the property to Ontario's land titles system.

The court found that the applicant failed to establish the requisite elements of adverse possession, including actual possession, intent to exclude the true owners, and effective exclusion.

The court dismissed the application and granted the respondents' cross-application for an order requiring the applicant to remove her trailer and detritus from the strip and cease trespassing.

The applicant was ordered to pay partial indemnity costs of $10,000.

The plaintiff brought a motion to set aside an administrative dismissal of her claim filed in 2018 concerning ownership of a thirty-foot strip of land.

The plaintiff alleged she purchased the property in 1994 from the prior owner, but the defendant acquired title in 2014.

After filing her claim in 2018, the plaintiff took no further action for approximately six years until the registrar administratively dismissed the claim in Fall 2024.

The court applied the four-factor test from Scaini v. Prochnicki to assess whether the dismissal should be set aside, considering whether there was a satisfactory explanation for delay, whether the delay was caused by inadvertence, whether the plaintiff moved promptly to set aside the dismissal, and whether the defendant suffered prejudice.

The court found the plaintiff had not met her onus and dismissed the motion.

This costs endorsement follows a motion for summary judgment in a failed real estate transaction.

The plaintiff was awarded judgment and sought substantial indemnity costs based on an unaccepted offer to settle and alleged conduct by the defendant’s counsel.

The court found the offer to settle was not more favourable than the judgment and that the defendant’s conduct did not justify elevated costs.

The plaintiff was awarded partial indemnity costs of $15,000, inclusive of disbursements and HST.

The court considered two motions in a family property dispute: (1) a motion to strike paragraphs from a statement of defence, and (2) a motion for summary judgment seeking a declaration of beneficial ownership of real property, or, in the alternative, damages.

The court struck one paragraph with leave to amend and another without leave, and dismissed the summary judgment motion, finding genuine issues of material fact requiring a trial, particularly regarding the parties' intentions and credibility.

The court made further orders to preserve the status quo and directed that the trial of this action be heard together with related matrimonial proceedings.

This motion for summary judgment arose from a failed real estate transaction where the defendant buyer breached an Agreement of Purchase and Sale (APS) due to financing issues.

The plaintiff seller re-sold the property for a lower price and sought damages for the price difference and carrying costs.

The defendant argued the plaintiff failed to mitigate damages by delaying re-listing.

The court granted summary judgment, finding the defendant liable for breach and that the plaintiff acted reasonably in mitigation.

Damages were awarded for the loss on resale and some expenses, with deductions for the forfeited deposit and rental income.

The defendant moved to discharge a Certificate of Pending Litigation (CPL) against their property and sought security for costs, arguing the plaintiff, a non-resident, had no Canadian assets.

The plaintiff cross-moved for a Mareva injunction.

The court discharged the CPL, finding no evidentiary support for the plaintiff's claim to an interest in the land.

The Mareva injunction was dismissed as the plaintiff failed to establish a strong prima facie case and, even if they had, the "clean hands" doctrine would apply due to the plaintiff's admitted involvement in an illegal lending scheme.

Security for costs was ordered against the plaintiff in the amount of $50,000, as she is a foreign national with no Canadian assets and was not found to be impecunious.

The plaintiffs, Gary and Valentina Graf, sought damages for breach of contract after the defendants, Easwara Periyathamby, Chitra Subramaniam, Via Realty Inc., and Mahesan Subramaniam, failed to close on agreements of purchase and sale for two income properties.

The plaintiffs intended to sell these properties to fund the purchase of a restaurant.

The defendants argued that a verbal agreement linked the property sales to the restaurant purchase, stipulating mutual releases and deposit returns if any deal failed, and also alleged misrepresentation regarding one property's use.

The court found no credible evidence of such a verbal agreement or misrepresentation, emphasizing that written contracts with "entire agreement" clauses supersede prior verbal understandings.

The court ruled in favor of the plaintiffs, ordering forfeiture of deposits and awarding damages for the loss incurred on the resale of one property, while dismissing the defendants' counterclaim.

The plaintiff, a mortgage broker, brought a motion for summary judgment against the defendants, lawyers for the borrower, seeking $37,500 in unpaid broker fees.

The plaintiff alleged the defendants breached a trust by advancing the full mortgage funds to their client despite being notified of an error that included the broker fees.

The defendants argued there was no trust agreement with the plaintiff and they acted on their client's instructions.

The court dismissed the motion, finding no certainty of intention to create a trust and that the defendants did not act dishonourably by prioritizing their client's instructions.

The court also commented on the impropriety of a lawyer acting as both witness and counsel.

The plaintiff brought a motion for summary judgment on his claim for payment under a Promissory Note and for dismissal of the defendants' counterclaim for negligent misrepresentation.

The dispute arose from the sale of a landscaping business, where the defendants stopped making payments on the Promissory Note after a third party failed to pay on a contract.

The court found no genuine issue for trial, holding that the Share Purchase Agreement did not make payment of the Promissory Note contingent on the third-party contract.

The court also dismissed the counterclaim, finding no evidence to support the elements of negligent misrepresentation.

Summary judgment was granted in favour of the plaintiff.

This endorsement addresses the costs of a motion where the plaintiff, Adam Rowe, successfully opposed the defendant JD Design & Build Inc.'s attempt to challenge an Associate Justice's report.

The plaintiff sought costs on a full indemnity basis, or alternatively, substantial indemnity based on a Rule 49 offer.

The court rejected full indemnity costs, finding no reprehensible conduct by the defendant, but awarded costs on a partial indemnity basis up to the date of the Rule 49 offer and substantial indemnity thereafter, totaling $14,500.00.

The court emphasized that the defendant's ability to pay was irrelevant given the application of Rule 49.10.

The defendant JD Design & Build Inc. brought a motion opposing the confirmation of an associate judge's report, which awarded the plaintiff a construction lien and contract damages, and dismissed the defendant's counterclaim.

The defendant alleged the associate judge erred in finding that travel time was included in the contract, that certain work was outside the initial scope, and that the costs award was proportionate.

The Superior Court of Justice dismissed the motion, finding no palpable and overriding errors in the associate judge's factual findings and no error in principle in the discretionary costs award.

The appellant, William Soroka, appealed the dismissal of his motions to set aside foreclosure judgments and default notations in three mortgage foreclosure actions.

The judgments were obtained in December 2014 and registered in April 2018, but Soroka moved to set them aside in October 2019, approximately five years after judgment.

The Court of Appeal upheld the motion judge's decision, finding no error in applying both the test for setting aside default judgments and relief against forfeiture.

The court agreed that the motions were not brought promptly and the appellant's explanation for delay was not credible.

The court also found no error in considering whether the appellant had an arguable defence on the merits, noting he never sought to convert the claims to judicial sales until the motions to set aside.

The appeal was dismissed, emphasizing that granting the relief would amount to a substantial windfall for the appellant and would not enhance the integrity of justice.

The defendant brought a motion to stay the enforcement of foreclosure orders respecting several properties pending his appeal to the Court of Appeal.

The defendant argued he would be rendered homeless and destitute without the stay.

The court applied the RJR-MacDonald test and found that the defendant failed to establish irreparable harm, as his harm was quantifiable in monetary terms and he owned another valuable property.

The court also found the balance of convenience favoured the plaintiffs, who risked liability and further deterioration of the properties.

The motion for a stay was dismissed.

The third party, a court-appointed receiver, brought a motion to stay a third party claim commenced against it by the defendants.

The defendants sought contribution and indemnity, as well as unpaid professional fees.

The court granted the motion and stayed the third party claim, finding that the defendants failed to obtain leave of the court as required by the receivership order.

The court also found that the fee claim was barred by the limitation of liability provision in the receivership order and constituted an abuse of process because it was identical to a previous action that had been dismissed for delay.

The moving party defendant sought to set aside default foreclosure judgments obtained by the plaintiffs in 2014 regarding three properties.

The defendant argued he had an oral agreement with the plaintiffs not to proceed with the actions.

The court dismissed the motion, finding the defendant's evidence of an oral agreement lacked credibility, the motion was not brought with reasonable promptness, and the defendant lacked a plausible excuse for the delay or an arguable defence on the merits.

The plaintiffs, John Moore Construction Management Inc. and Higgins Electrical Contracting Services Ltd., brought a motion to enforce accepted offers to settle and determine costs against Artworld Inc. Artworld had accepted settlement offers but delayed agreeing to judgments and disputed the plaintiffs' claimed costs, attempting to refer them to an assessment officer despite the Master's clear jurisdiction.

The Master found the motion necessary due to Artworld's unreasonable conduct and lack of good faith in resolving the costs issue.

The Master accepted the plaintiffs' costs calculations, with a slight adjustment for partial success, and awarded substantial indemnity costs for the motion due to Artworld's delaying tactics.

This costs endorsement addresses the allocation of legal costs following an unsuccessful motion brought by John Gordon Ross to amend the passing of accounts for the Estate of Sarah McMahon Grafton.

The Canada Trust Company, as executor, and three other respondents (Stewart, James Grafton, and James Henry Ross) sought costs against John Gordon Ross due to his non-compliance with prior court orders and the lack of merit in his motion.

The court awarded substantial indemnity costs to Canada Trust ($30,460.68) and partial indemnity costs to the other three respondents ($10,480), both payable personally by John Gordon Ross.

The decision emphasized that John Gordon Ross lacked standing and his claim was time-barred, and his conduct warranted the costs awards.

John Gordon Ross brought a motion seeking to amend a prior Judgment on Passing of Accounts to reflect a liability to Margaret's estate for capital expenditures made on a cottage property.

The court found that Margaret's estate's claim for reimbursement was barred by the Limitations Act, 2002, as Margaret had knowledge of the claim more than two years before her death.

The court distinguished between a beneficiary's objection to accounts (not a "claim" under the Limitations Act) and a motion seeking to establish a liability from the estate to an alleged creditor (which is a "claim" subject to the Act).

The motion was dismissed.

The plaintiff sought an interlocutory injunction to prevent the defendants from using the name "Kishki Halal Supermarket" for a new grocery store, alleging passing off.

The court applied the three-stage test for interlocutory injunctions from *RJR-MacDonald* and the components of a passing off action.

The court found that the plaintiff failed to establish a serious issue to be tried, specifically regarding public deception and actual/potential damage caused by deceptive misuse of goodwill.

The court also found no irreparable harm and that the balance of convenience favored the defendants.

The motion was dismissed, and costs were awarded to the defendants.