Anthony J. Gabriele

The appellant, Ekum-Sekum Incorporated (Brantco Construction), appealed a trial judge's finding that equitable set-off was available to the respondents, Lanca Contracting Limited et al., arguing that the respondents did not come to court with clean hands.

The Court of Appeal found that the two construction contracts were related, making equitable set-off available.

The trial judge had properly exercised discretion, recognizing both parties' contract breaches but not finding unclean hands.

The appellate court also upheld the trial judge's finding that a claimed breach of trust under the Construction Lien Act was not proven, as funds were adequately accounted for.

The appeal was dismissed, as the appellant failed to establish a palpable and overriding error of fact or an extricable error of law.

The court considered costs submissions following a trial concerning a failed business venture.

Despite the plaintiffs' offers to settle and claims of the defendants' inappropriate conduct, and the defendants' counter-arguments, the court found that success was divided, or more accurately, a "divided failure." Given that litigation expenses approached $200,000 for each party while the amounts recovered were significantly less (within Small Claims Court jurisdiction for the plaintiffs), the court emphasized proportionality.

Ultimately, no costs were awarded to either party, as the litigation was not conducted in a reasonable manner and the conduct did not meet the threshold for elevated costs.

The plaintiff paving contractor sued the defendant general contractor for unpaid invoices and extras on a construction project (the Archmill project).

The plaintiff had also refused to perform work on a second, unrelated project (the Burgessville project) until it was paid for the first.

The court found that the plaintiff was entitled to payment for some, but not all, of the disputed extras on the first project.

However, the court also held that the plaintiff's refusal to work on the second project constituted an anticipatory breach of contract.

The defendant was awarded damages for the extra costs incurred to complete the second project, and the court allowed the defendant to equitably set off those damages against the amount owed to the plaintiff on the first project.

The plaintiff's claim for breach of trust under the Construction Act was dismissed.

This case involved a dispute between two married couples, who were also siblings and their spouses, over the apportionment of substantial losses from a failed M&M Meat Shops franchise business.

The court was tasked with interpreting a "Letter of Understanding" (LOU) signed during mediation and its relationship to an earlier unanimous shareholders agreement.

The court found a material common or mutual mistake regarding the total corporate debt amount stated in the LOU, rendering the debt distribution terms of the LOU ineffective.

However, the LOU's provision for a $30,000 "sweat equity" payment to the defendants was upheld.

The remaining funds were ordered to be distributed based on the initial shareholders agreement's proportionate contribution terms, after correcting for disproportionate contributions and rejecting a minor claim for frozen food.

The applicant, sole beneficiary of her late father's estate, brought an application against her aunt (the respondent) and the estate of her late grandmother for misappropriated estate funds.

After the father's death, the grandmother, who was the named estate trustee, used the deceased's debit card to make unauthorized cash withdrawals and retail purchases.

The court found that while the respondent was not a trustee de son tort, she was liable for knowing assistance in the grandmother's breach of trust, as she drove the grandmother to the bank and stores, knew the debit card belonged to the deceased, and assisted in the transactions.

The respondent and the grandmother's estate were held jointly and severally liable for $12,481.42, with the estate liable for an additional amount.

The appellants sought to appeal an order denying a certificate of pending litigation and requested interim relief.

The Court of Appeal determined that the order denying the certificate was an interlocutory order, not a final one, meaning jurisdiction for the appeal lay with the Divisional Court, requiring leave.

Consequently, the Court of Appeal lacked jurisdiction to hear the appeal or grant interim relief pending an appeal it could not hear.

The court declined to exercise its discretion to sit as the Divisional Court, noting the appellants already had a leave motion pending there.

The appeal was quashed.

The moving parties, who had commenced an action alleging fraudulent conveyance and seeking a certificate of pending litigation (CPL), appealed the dismissal of their CPL motion.

They brought two appeals (to Divisional Court and Court of Appeal) and two motions in the Court of Appeal: one to determine jurisdiction (final vs. interlocutory order) and another for an interim CPL under s. 134(2) of the Courts of Justice Act.

The single motion judge declined to rule on the interim CPL, citing reservations about jurisdiction given the pending determination by a panel.

The judge adjourned the interim CPL motion to be heard concurrently with the jurisdiction motion on an expedited basis and extended the appeal perfection date.

The judge also commented on the systemic confusion regarding appeal routes in Ontario.