Sylvia Corthorn

The defendants brought a motion for security for costs and the release of funds held in trust from a real estate transaction.

On the return of the motion, after the court highlighted significant evidentiary deficiencies in their affidavit materials, the defendants abandoned the motion in its entirety.

The court formally dismissed the abandoned motion and awarded the plaintiff costs on a partial indemnity scale, noting the motion was poorly executed and lacked merit.

This motion arose from one of six related actions following a fatal motorcoach bus collision on Highway 401 in June 2018, in which the deceased was a passenger.

The plaintiffs sought: an order to continue the action on behalf of a plaintiff who died after the action was commenced; approval of the settlement of the claims of a minor plaintiff (the deceased's granddaughter); approval of the minor plaintiff's contribution toward the solicitor-client account; and approval of the management of the net settlement funds payable to the minor plaintiff by her father, who resides in China, rather than through the Accountant for the Superior Court of Justice.

The court granted all relief requested, finding that the settlement was reasonable and in the minor's best interests, that payment to the father was proportionate and practical given the parties' residence in China, and that counsel's dual role as affiant and lawyer of record was appropriate in the circumstances.

The main action and all crossclaims were dismissed without costs.

The moving parties sought approval in writing of a settlement for an adult under disability, together with approval of a fee structure agreement and solicitor-client account.

The court held it could not grant the requested relief because the motion record was procedurally deficient, excessively long, improperly organized, and non-compliant with local guidance for court approval motions.

The endorsement criticized the inclusion of unnecessary and duplicative exhibits, inadequate grounds in the notice of motion, and failures to explain the relevance of cited rules.

The motion was adjourned, a fresh record was required, and the parties were directed to choose among a revised written motion, an oral hearing, or a case conference.

The applicant condominium corporation sought relief against a unit owner for alleged breaches of the Condominium Act, the corporation's Declaration, and its Rules.

The breaches alleged included harassment of board members and contractors, failure to maintain an exclusive-use yard in compliance with governing rules, and refusal to permit access to a common element (sump pump) located within the unit.

The court found that the respondent breached sections 19, 117, and 119 of the Condominium Act, the Declaration, and the Rules.

The court granted declaratory relief and orders requiring the respondent to permit access to the yard for maintenance and to cease harassing and threatening communications.

The court adjourned the determination of compensatory relief and costs pending further submissions.

Motion for court approval of settlement of claims on behalf of three minor grandchildren of the deceased in a fatal pedestrian-vehicle collision case.

The plaintiffs sought approval for $10,000 to be paid to the Accountant of the Superior Court for each minor plaintiff, along with approval of a contingency fee retainer agreement and related relief.

The court adjourned the motion due to insufficient evidence regarding the quantum of the settlement, the basis for the settlement amount, and the treatment of legal fees and disbursements.

The court identified multiple procedural deficiencies in the motion record and provided detailed directions for resubmission.

The individual defendants (Mayor and Treasurer) brought a motion to dismiss the action against them pursuant to Rule 2.1.01(6) of the Rules of Civil Procedure on the grounds that the claims were frivolous, vexatious, or an abuse of process.

The plaintiff alleged his home was sold at a tax sale auction for less than 45% of its value and sought compensatory and punitive damages.

The court found that the claims against the individual defendants lacked any factual basis specific to their personal conduct and were not justiciable.

The motion was granted and the claims against the individual defendants were dismissed without costs.

The applicant sought a declaration regarding the end date of a contract for the supply of telephones, televisions, and multimedia terminals to the applicant's inpatient facilities.

The original agreement commenced in September 2003 for 9.5 years.

An amending agreement in 2009-2010 extended the term by 7 years to March 1, 2020, and introduced new multimedia terminals.

The respondent argued the contract contained an alternative term triggered upon completion of terminal installation in July 2014, extending the contract to January 2031.

The court applied principles of contract interpretation and found the alternative term was vague and unenforceable.

The court also found the respondent was precluded by the doctrine of election from asserting the alternative term, having previously relied on the contract's terms in the commission dispute.

The court declared the contract term to be September 1, 2003 to March 1, 2020.

The applicant, David Rossetti, sought a vesting order for property in Elizabethtown, Ontario, to be held by himself and Anthony Joseph Rossetti as tenants in common, each with a 50% interest.

The court addressed procedural issues regarding service and representation of several respondent estates and the inability to locate the trustee in bankruptcy for one co-owner.

The court granted the requested vesting order, finding the procedural requirements satisfied and the equities favouring the applicant, and ordered the land registry to be amended accordingly.

This case conference endorsement addresses the terms of an order following a successful motion by the plaintiffs to remove the defendants’ lawyers of record.

The parties could not agree on two terms: whether the order should specify that each defendant must be separately represented, and whether a deadline should be set for the defendants to retain new counsel.

The court held that the order should simply require separate representation, as per the original ruling, and declined to impose a deadline for retaining new counsel.

The endorsement also clarifies that the mechanism for representation of the Estate of Landino Zuccarini remains to be determined at a future hearing.

The Corporation of the City of Quinte West sought a declaration of abandonment and transfer of title for the Stone Church United Cemetery.

The court found that the cemetery lands were abandoned within the meaning of the Funeral, Burial and Cremation Services Act, 2002, and granted the requested declaratory and ancillary relief to facilitate the transfer of ownership to the municipality.

The court also dispensed with the requirements for service and filing a factum, given the lack of opposition and the straightforward nature of the application.

The court dispensed with the requirement for litigation guardians residing in China to file affidavits in support of court approval motions for settlements involving parties under disability, due to legal and logistical barriers under Chinese law.

The decision reviews the collaborative resolution of liability and settlement issues following a major motor coach accident, the apportionment of limited insurance funds, and the purpose of the court approval process under Ontario law.

The court found that requiring affidavits would be disproportionate and unnecessary, and that the interests of justice are served by waiving the requirement.

The applicants, Dan Dunlap and Dunlap Law Professional Corporation, sought a charging order against settlement funds held in trust by Badre Law Professional Corporation for legal services provided to Carl Williams.

The court determined the principal amounts outstanding for four matters, but found that only the disbursements related to the personal injury matter were eligible for a charging order under the Solicitors Act.

The court granted a charging order for $857.20 plus interest at 3% per year, and dismissed the remainder of the application as statute-barred.

Costs were awarded only as previously ordered.

The court considered an application by Basil Basnandan for a declaration that the purchasers, Michael A. Jones and Delphina Mervin Leblanc, were in breach of an agreement of purchase and sale for a commercial property, and for an order directing the broker, RE/MAX Hallmark Eyking Group Realty, to release the $200,000 deposit to him.

The purchasers failed to complete the transaction due to inability to secure financing.

The court found an anticipatory breach, held that Basnandan was entitled to terminate the agreement, and ordered the deposit released to him.

The court also addressed the commissioning of affidavit exhibits, the law of forfeiture and relief from forfeiture, and awarded partial indemnity costs to Basnandan.

The Corporation of the County of Prince Edward sought a declaration of ownership and a vesting order for MacDonald Street in Wellington, Ontario, a parcel of land with no registered owner.

The court found that the County had established ownership through decades of public expenditure and maintenance, as well as by-law dedication, and that the requirements for dedication and acceptance as a public highway were met.

The court also exercised its discretion to grant a vesting order, correcting the title to the subject lands.

This decision concerns the approval of a contingency fee retainer agreement, the reasonableness of solicitor-client accounts, and the management of settlement funds for plaintiffs under disability in a personal injury action.

The court reviews the proposed legal fees for both Stephen and Adriana Duffy, the structure of the settlement payments, and the adequacy of the arrangements for the management of funds, ultimately approving the proposals as reasonable and in the best interests of the parties.

The applicants, Raymond Laxton and his son Gregory Elliott Laxton, sought appointment as joint guardians of property and personal care for Josephine Margaret Laxton.

The court had previously appointed them as joint guardians of personal care and required further evidence regarding guardianship of property.

After reviewing updated evidence, including a capacity assessment and financial information, the court found Josephine incapable of managing property and appointed Raymond and Gregory as joint guardians of property.

The court dispensed with the requirement to post security, citing the prohibitive cost and the family’s close, trusting relationships.

The guardians were ordered to pass their accounts within the time frame recommended by the Public Guardian and Trustee.

Costs were awarded only to the PGT.

The court considered a motion to remove the Public Guardian and Trustee (PGT) as litigation guardian for Stephen Duffy, following a new capacity assessment that found him capable of managing property.

The court found the evidence insufficient to establish, on a balance of probabilities, that Stephen was no longer a party under disability within the meaning of the Rules of Civil Procedure.

The motion was dismissed without prejudice, and the PGT remains as litigation guardian.

The court considered costs following the resolution of four building permit appeals brought by Rothmar Holdings Inc. against the City of Cornwall.

After the City issued permits for all properties before the hearing, the parties argued only costs.

Rothmar sought substantial indemnity costs, alleging bad faith by the City, while the City sought partial indemnity costs or no costs.

The court declined to award costs to either party, finding it inappropriate to investigate the merits, apply costs factors, or determine relative success in the absence of findings on the substantive issues.

The court also declined to award costs of a preliminary evidentiary motion.