Allen C. Gerstl

The moving party, Vince Demasi, brought a motion for leave to appeal the order of Bird J. dated April 4, 2023.

The Divisional Court dismissed the motion for leave to appeal without costs.

The appellant sought to review a single judge's order declining an extension of time to perfect his appeal.

The underlying appeal concerned a refusal to extend time to appeal an Ontario Court of Justice order dismissing the appellant's application for adult child support under the Family Law Act, based on his failure to pay a 1995 New Brunswick divorce judgment.

The Court of Appeal dismissed the review motion, finding no error in the motion judge's decision regarding the appellant's delay, lack of merit in the appeal, and prejudice to the respondents.

The court affirmed that the motion judge properly considered the relevant factors for extending time to perfect an appeal.

The appellant appealed a consent order incorporating terms of a separation agreement, alleging the respondent misrepresented his income and failed to provide full financial disclosure, particularly after purchasing a new house.

The respondent had moved under Rule 14 of the Family Law Rules to grant the consent order, providing additional disclosure.

The motion judge granted the consent order and did not order further disclosure.

The Court of Appeal dismissed the appeal, finding that Rule 13 (requiring updated financial statements) was inapplicable given that full disclosure was made at the time of settlement and the consent order had been implemented.

The court also found the use of a Rule 14B motion appropriate, despite opposition, as the matter was deemed "seemingly uncomplicated" and the motion judge had reviewed the evidence.

The applicant, an elderly woman in long-term care, sought a writ of possession to evict her nephew from her home so it could be sold to fund her care.

The nephew argued he had an oral agreement granting him a life interest in the property in exchange for helping his aunt and paying her $50,000, which he claimed was part consideration.

The court found the $50,000 was repayment of a prior debt and that the nephew's actions did not constitute part performance unequivocally referable to an agreement for an interest in land.

The court rejected the nephew's claims of proprietary estoppel and granted the writ of possession, staying the eviction for three months to allow him to relocate.

The plaintiff brought a motion to amend her statement of claim to substitute the names of two individuals for 'John Doe' defendants who allegedly caused her severe burns during a cosmetic laser treatment.

One of the proposed defendants opposed the motion, arguing she did not treat the plaintiff and would suffer prejudice.

The court applied the 'litigation finger' test for misnomer, finding that the statement of claim clearly pointed to the proposed defendant as the intended target.

The court rejected the proposed defendant's denial of liability as irrelevant to a misnomer motion and found no actual prejudice.

The motion to amend was granted.

The applicant sought leave to appeal an arbitration award concerning the division of proceeds from the sale of a jointly owned property.

The arbitrator had credited the respondents with $30,730 for construction costs incurred prior to the execution of Minutes of Settlement.

The Superior Court of Justice granted leave to appeal, finding that the arbitrator made an extricable error of law by ignoring the plain wording of the Minutes of Settlement, which reset the parties' rights as of the date of execution.

The appeal was allowed, and the arbitration award was varied to remove the $30,730 credit.

The plaintiff and certain defendants each brought urgent motions during the COVID-19 pandemic, when the court was only hearing urgent matters.

The defendants sought an order to pay out funds held in court, while the plaintiff sought to prohibit the payout and further motions.

The court found that neither party provided cogent, particular, and specific evidence to demonstrate that the relief requested was urgent, as defined by the Chief Justice's notices.

Consequently, both motions were dismissed for lack of urgency, and no hearing was scheduled.

The appellant appealed the dismissal of his family law proceedings under rule 1(8) of the Family Law Rules.

The motion judge had given the appellant an opportunity to make a partial payment of $5,000 to avoid dismissal.

The appellant failed to make this payment.

The motion judge considered the appellant's failure to comply with this order, his history of non-compliance with court orders dating back to 2006, and multiple costs orders against him.

Finding no exceptional circumstances warranting discretionary relief, the motion judge dismissed the proceedings.

The Court of Appeal found no error in the motion judge's exercise of discretion and dismissed the appeal.

Following a successful application by a condominium corporation to enforce its declaration against an offending unit owner and its tenants, the court determined the appropriate scale and quantum of costs.

The court awarded the applicant full indemnity costs of $24,771.93, noting that section 134(5) of the Condominium Act and the condominium's declaration contemplate full recovery of enforcement costs to protect innocent unit owners.

A supporting respondent, who gathered evidence of the breach to protect his exclusive use rights, was awarded partial indemnity costs of $15,000 against the offending respondents.

The respondent Estate Trustee moved to dismiss the applicant's proceedings due to persistent non-compliance with court orders, including disclosure and costs, and for want of prosecution over an eight-year period.

The applicant had failed to pay multiple costs awards and provide financial disclosure.

The court applied Family Law Rule 1(8) and found the applicant's non-compliance deliberate and an affront to the administration of justice.

The court also found irreparable prejudice to the Estate due to the respondent's death and the applicant's inordinate delay.

The application was dismissed for both non-compliance and want of prosecution.

The defendant brought a motion to dismiss the plaintiff's claim for delay, citing the plaintiff's failure to answer undertakings which required four prior motions to compel.

The court noted that dismissing an action for delay is a severe remedy.

Because the plaintiff had finally answered all undertakings, paid the costs of the prior motions, and passed the Trial Record, the court declined to dismiss the claim.

However, because the motion was necessary to force the plaintiff to advance the matter, the court awarded costs of the motion to the unsuccessful defendant in the amount of $2,000.

The plaintiff, Robert Weidenfeld, brought a motion seeking permission to participate by teleconference and an order confirming impecuniosity.

The defendants, Robert Andrew Leck and Stiver Vale (law Firm), brought a cross-motion for security for costs against the plaintiff.

The court found that the plaintiff, residing outside Ontario with no assets in the province, failed to provide sufficient evidence of impecuniosity.

The court also determined that the plaintiff's claim against the moving defendants, alleging negligence and breach of duty of care by real estate lawyers for transferring property without investigating outstanding family law proceedings, did not appear obviously meritorious.

Consequently, the defendants' motion for security for costs was granted in the amount of $20,000, payable in installments, and the plaintiff's motion was dismissed.

The applicant, the former husband of the deceased, brought an application for directions under Rule 75.06 seeking to be appointed estate trustee and to obtain exclusive possession of the deceased's house to prepare it for sale.

The applicant was not a beneficiary under the will but had several outstanding lawsuits against the deceased and her estate.

The court dismissed the application, finding that the applicant lacked standing because a creditor with unliquidated claims does not have a 'financial interest' in the estate within the meaning of Rule 75.06.

The appellant appealed an order dismissing its motion to oppose the confirmation of a Master's report.

The Master had found the appellant liable for the balance of an unpaid account for garage roof repairs under a fixed price contract.

The Divisional Court dismissed the appeal, finding that the Master's conclusions regarding the existence of a fixed price contract and privity of contract were supported by the evidence and contained no palpable and overriding error.

The appellant appealed an order of a case management Master striking its defence of set off and counterclaim due to repeated breaches of court orders and failure to produce documents.

The Divisional Court applied the standard of review for discretionary orders of a Master, finding that the Master had ample evidentiary basis and applied the correct legal principles.

The appeal was dismissed, as the Master's decision to strike the pleadings to prevent trial delay and prejudice to the respondent was justified.

The defendants moved to set aside a registrar’s default judgment and the noting in default.

The motion focused on whether the registrar improperly granted judgment for claims that were not liquidated demands under Rule 19.04(1)(a) of the Rules of Civil Procedure.

The court held that claims for loss of chattels, demolition costs, and future rent damages required evidence outside the contract and therefore were not liquidated demands.

Because the registrar may only grant default judgment for liquidated claims, the judgment was irregular and a nullity.

The court set aside both the default judgment and the noting in default without imposing terms, except requiring the defendants to deliver a statement of defence within 30 days.

The moving party brought a motion before the Divisional Court to appeal a Superior Court judge's refusal to grant leave to appeal.

The Divisional Court dismissed the motion, holding that it lacked jurisdiction to hear the appeal.

The court distinguished previous case law where leave was refused by a Divisional Court judge, noting that section 21(5) of the Courts of Justice Act did not apply to a Superior Court judge's refusal.

Costs were awarded to the responding party on a partial indemnity basis.

The appellant appealed a judgment of the Superior Court of Justice.

On consent of the parties, the Court of Appeal ordered the appeal withdrawn without costs.

The appellant solicitor appealed an order requiring him to fulfill a solicitor's undertaking to repay a $50,000 loan to the respondent from mortgage financing.

The appellant breached the undertaking by paying the funds directly to the debtor.

The appellant argued the debt had already been paid by the debtor but provided only an affidavit based on information and belief, contrary to Rule 39.01(5).

The applications judge refused an adjournment to summons the debtor and ordered the appellant to pay the sum plus prejudgment interest.

The Court of Appeal dismissed the appeal, emphasizing that solicitors must be strictly accountable for their undertakings and noting the lack of admissible evidence supporting the appellant's claims.

On an appeal from summary judgment enforcing three personal guarantees in favour of a bank, the appellant argued that representations by the bank's representative limited or altered his obligations under the guarantees.

The court held that the alleged representations concerning the $50,000 and $35,000 guarantees did not raise a genuine issue for trial because they were contradicted by the documents and the surrounding circumstances.

However, the affidavits concerning the $6,000 guarantee disclosed a genuine issue for trial because both sides acknowledged circumstances suggesting that guarantee may have been intended to apply only to a specific Visa debt.

The appeal was allowed in part and the default judgment was amended to exclude enforcement of the $6,000 guarantee pending trial.