Tom Serafimovski

The applicants brought an application seeking the removal of two locked gates installed by the respondents over a registered right of way used to access the applicants' cottage property.

The respondents had demanded proof of liability insurance and imposed conditions on the use of keys.

The court found that the installation of the locked gates constituted a substantial and practical interference with the applicants' use and enjoyment of the easement.

The court ordered the removal of the gates and awarded the applicants $10,000 in general damages for the loss of use and enjoyment of the right of way.

The plaintiff's action for breach of a research agreement was dismissed at trial, and the defendant university's counterclaim was allowed.

The defendant sought its costs of the proceeding on a substantial indemnity basis, arguing that the plaintiff made unfounded allegations of fraud and deceit against the university and its personnel.

The court agreed, finding that the plaintiff's principal directed the litigation and used the court process to advance baseless and egregious allegations, constituting an abuse of process.

The court awarded the defendant $640,589.62 in substantial indemnity costs and held the plaintiff's principal personally liable for $150,000 of that amount as a non-party.

This case concerned a contract dispute between Harris Brothers Ltd. (plaintiff) and Mud Creek Capital Corp. (defendant) regarding levelling and regrading work for wind turbine towers.

The plaintiff claimed over $130,000 based on an alleged "open" time and materials contract, while the defendant argued the contract was for approximately $10,000 or $40,000.

The court found that the binding contract was a $40,000 purchase order, which required written agreement for any additional work.

Due to the plaintiff's failure to obtain such written consent for work exceeding the $40,000 cap, the court limited the plaintiff's recovery to the contract price.

Claims for quantum meruit and unjust enrichment were dismissed as a binding contract existed.

The defendant's counterclaim for costs to complete the work was also dismissed because they had prohibited the plaintiff from finishing the job.

Claims against the personal defendants were dismissed due to lack of evidence of personal liability.

The plaintiff contractor performed emergency and restoration services on a property insured by the defendant insurer after a flood.

The property owner went bankrupt before paying the contractor for the restoration work.

The contractor sued the insurer for the unpaid amounts, alleging breach of contract, negligence, conversion, and unjust enrichment, arguing the insurer should have paid the contractor directly or issued co-payable cheques.

The insurer moved for summary judgment.

The court granted the motion and dismissed the action, finding no contract existed between the insurer and the contractor, the insurer owed no duty of care to the contractor to ensure payment, the contractor had no ownership interest in the insurance proceeds to support a conversion claim, and the insurer was not unjustly enriched.

The plaintiff, Sunsource Grids Inc., brought an action against the University of Windsor for $40 million in damages, alleging breach of a research agreement, misrepresentation, and intentional interference with economic relations regarding the development of a solar PV switch technology.

The University counterclaimed for breach of contract due to the plaintiff's failure to provide required in-kind contributions.

Following a 50-day trial, the court dismissed the plaintiff's action, finding that the University did not breach the agreement or act in bad faith.

The court held that the plaintiff's failure to supply necessary components was a condition precedent that excused the University's inability to deliver a hardware prototype.

Furthermore, the court found the plaintiff's claimed damages for loss of future profits were too remote, excluded by the contract's consequential damages clause, and based on a technology that was not commercially viable.

The University's counterclaim was allowed, and the plaintiff was ordered to pay $21,800 for its breach of contract.

Following an appeal where the appellants achieved mixed success, the appellants requested to make written costs submissions, arguing that each side should bear their own costs of the appeal and costs below should be in the cause.

The Court of Appeal affirmed its original costs order, finding that the respondent was more successful on the appeal as the appellants' claim was largely statute-barred.

The original award of $6,500 in appeal costs to the respondent was maintained.

The appellants commenced an action in nuisance and negligence against the respondent municipality for property damage allegedly caused by heavy truck traffic vibrations.

The action was commenced after the Ontario Municipal Board declined jurisdiction over the appellants' injurious affection claim.

The motion judge dismissed the civil action as statute-barred under the two-year limitation period.

On appeal, the Court of Appeal upheld the application of the two-year limitation period and the finding that it was not legally appropriate to wait for the OMB decision before commencing the civil action.

However, the Court allowed the appeal in part, finding a genuine issue for trial regarding whether the municipality engaged in ongoing wrongful conduct causing damage within the two years prior to the statement of claim.

Two competing applications were brought seeking the interpretation of a commercial lease between a tenant operating a nutritional supplement store and a landlord.

The landlord alleged the tenant breached the lease and a restrictive covenant in favour of another tenant by preparing made-to-order protein shakes, selling weight loss products, and operating a juice bar.

The court found that the lease did not permit the tenant to prepare or mix shakes on-site, constituting a breach.

However, the tenant was permitted to sell weight loss products, and there was insufficient evidence that it operated a juice bar.

A permanent injunction was granted restraining the tenant from selling on-site prepared beverages.

Following a decision in favour of the defendant, the court determined the quantum and scale of costs.

The defendant sought substantial indemnity costs, arguing the plaintiffs' actions were improper.

The court rejected this characterization, finding the plaintiffs acted within the boundaries of the law.

Costs were awarded to the defendant on a partial indemnity scale, fixed at $11,850 inclusive of HST, as submitted by the plaintiffs.

The plaintiffs sought damages for nuisance and statutory liability under the Municipal Act, 2001, alleging property damage from increased truck traffic.

Both parties brought competing summary judgment motions.

The court found the plaintiffs' claim was statute-barred under the Limitations Act, 2002, as it was discovered in February 2009, making the January 2018 action outside the two-year limitation period.

The court rejected the application of the ten-year Real Property Limitation Act and the "rolling" cause of action.

Additionally, the court held that the statutory duty of care under s. 44 of the Municipal Act, 2001, was owed to the travelling public, not adjoining landowners.

Consequently, the defendant municipality's motion for summary judgment was granted, and the plaintiffs' motion was dismissed.

An appeal from a trial judgment upholding the validity of a codicil executed by an 87-year-old mother that changed her will to leave the residue of her estate to one son instead of dividing it equally between two sons.

The appellant son challenged the codicil on grounds of lack of testamentary capacity, undue influence, and coercion.

The trial judge found the codicil valid after a 10-day trial.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings regarding testamentary capacity, knowledge of assets, and the absence of undue influence or coercion.

The plaintiffs sought an interlocutory injunction to prevent the sale of a medical clinic, asserting a right of first refusal (ROFR).

The court found the plaintiffs' case for an ROFR to be very weak, noting that the condition precedent for the ROFR (plaintiff acting as Medical Director and Quality Advisor without compensation) was never fulfilled.

Furthermore, the court found no irreparable harm, as the third-party purchaser offered to continue the plaintiff's association agreement, and the plaintiff's claims of uniqueness for the clinic were speculative.

The balance of convenience also favored dismissing the injunction, as granting it would cause significant harm to the defendants and potentially the clinic's operations.

The interim injunction was terminated, and the request to continue it was denied.

The plaintiff brought a motion to extend the time for service of its Statement of Claim under the Construction Lien Act.

The court granted the extension nunc pro tunc, finding that the default was not intentional, there was no inordinate delay, and the delay would not prejudice a fair trial.

However, because the motion was necessitated by the plaintiff's inadvertence, costs were awarded to the defendants.

The plaintiff brought a motion to extend the time for service of its Statement of Claim, which was granted *nunc pro tunc* to comply with s. 53(2) of the Construction Lien Act.

The court found the default was not intentional, there was no inordinate delay, and the delay would not affect a fair trial.

Despite the plaintiff's success in obtaining the extension, the defendants were awarded costs due to the plaintiff's inadvertence in necessitating the motion.

The appellant appealed the dismissal of his claim for possessory title over a family cottage property and sought an increase in an $18,000 unjust enrichment award for improvements made to the land.

The respondents cross-appealed the unjust enrichment award.

The Court of Appeal held that the appellant's parents occupied the property as licensees under a family arrangement, not as tenants at will, meaning the limitation period under s. 5(7) of the Real Property Limitations Act was never triggered.

The Court upheld the unjust enrichment award, finding the application judge reasonably assessed the value of the improvements.

Both the appeal and cross-appeal were dismissed.