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The Appellant failed to prove on a balance of probabilities that the Respondents caused the mold damage; absent expert evidence and given indications of pre-existing deficiencies and prior notice of mold, the claim for remediation costs fails, the damage deposit must be returned, and the Respondents are entitled to abatements for loss of use as awarded by the Director.
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The Director’s order awarding $50.00 per week abatement was upheld because the landlord failed to provide proper air circulation throughout the tenancy, producing damp and mould that justified a rebate; the landlord’s remedial attempts and intent did not negate entitlement to an abatement, and the quantum of $50/week (under 10% of monthly rent) was reasonable.
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The Applicant's litigation was unnecessary, lacked a reasonable prospect of success, and advanced uncorroborated serious allegations while the personal representatives acted reasonably; accordingly the usual costs rule applies and it would be unfair to deplete the residuary beneficiaries' shares. The court exercised its discretion under Rule 77 to award lump sum costs of $32,000 to the Respondents, payable out of the Applicant's share of the residue with the balance to be paid from the Estate, and the Applicant's own costs to be borne personally.
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Roalno repudiated the agreement first by insisting on an abatement or quitclaims and refusing to complete the purchase; the vendors accepted that repudiation, terminating the contract; because there was no unregistered easement and the Road Access Act did not amount to an easement triggering the APS warranties, Roalno is disentitled to specific performance and the vendors may retain the $5,000 deposit.
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Where estate liabilities exceed available liquid assets, the testamentary life interest may abate and executors are authorized and obliged to sell estate property to satisfy debts; executors are not required to pursue former attorneys without evidence of misdeeds; applicant failed to discharge burden of proof so application to occupy the Property was dismissed.
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Respondent was ordered to indemnify the applicant for the actual payment to the abatement contractor and to pay party and party costs and disbursements because the respondent's refusal to cooperate and absence from proceedings necessitated multiple court appearances; costs were fixed at $7,000 based on the tariff and the amount involved and disbursements at $778.05, producing a total judgment of $8,521.76 against the respondent.
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The Court of Appeal upheld the trial judge's exercise of discretion to refuse the appellant's late change of pleaded position, affirmed that specific performance was an appropriate equitable remedy, accepted the quantification of abatement based on independent servicing costs given the appellant's conduct and ability to frustrate connection, found no reasonable apprehension of bias, and awarded costs to the respondent totaling $35,000.
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The Residential Tenancies Officer erred by refusing to consider the tenant's abatement/set-off; equitable set-off applies where the landlord's breaches are clearly connected to the rent claim; on the evidence the tenant was entitled to a one-time abatement of $2,500 which reduced current arrears to $2,000 and justified setting aside the termination order subject to conditional continuation of the lease.
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The appeal abates by reason of the appellant's death and the appropriate course is to close the file as abated.
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The appeal is allowed in part: although the motion judge was correct that she had authority to make both types of adjustments, the record was inadequate to calculate a rent credit so that ground fails; however the motion judge erred in failing to adjust the price for wasted legal expenses where $10,000 was established and reasonable, and the purchase price is to be abated by $10,000 with costs awarded to the appellant of $4,385.00.
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