Antonio Conte

The appellant appealed the dismissal of his claim for a resulting trust and the granting of the respondents’ claim for partition and sale of a property.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the resulting trust claim was statute-barred under the Real Property Limitations Act, lacked material corroboration under the Evidence Act, and would have been rebutted by evidence of a gift.

The court also upheld the dismissal of the appellant's claim for compensation for work done on the property and the order for partition and sale.

A motion to adduce fresh evidence was also dismissed.

This endorsement addresses the issue of costs following a judgment where the plaintiffs largely succeeded in their action for partition and sale and successfully defended against the defendant's counterclaim, with the exception of a minor payment to the defendant.

The plaintiffs sought costs on a substantial indemnity basis, or alternatively, partial indemnity.

The defendant argued for a lower award, citing partial success and excessive hours claimed by the plaintiffs.

The court determined that the defendant's conduct did not warrant substantial indemnity costs, finding that hard-fought litigation alone is insufficient.

The court awarded costs on a partial indemnity basis, reducing the plaintiffs' claimed hours due to some duplication of work, and ordered the defendant to pay the plaintiffs an all-inclusive amount of $125,000.00.

The court also noted that offers to settle could not be assessed for Rule 49.10 consequences due to fluctuating property values.

The plaintiffs sought partition and sale of a family property, while the defendant counterclaimed for a resulting trust, asserting 100% beneficial ownership, and reimbursement for property work.

The court dismissed the defendant's resulting trust claim, finding he failed to prove he contributed more than 50% of the purchase price and that the claim was statute-barred.

The court granted the plaintiffs' request for partition and sale, finding no grounds for refusal.

The defendant's claims for past work were largely dismissed as statute-barred, except for a recent invoice for waterproofing.

The plaintiff initiated a claim against the defendants arising from a joint venture to construct and sell a house, where costs and profits were to be shared equally.

The defendants were noted in default after failing to file a defence and comply with a peremptory court order to pay costs and deliver a defence.

The defendants cited financial hardship due to an earthquake in Turkey as an excuse for non-compliance.

The court proceeded with a default trial, emphasizing the paramount importance of obeying court orders and rejecting the defendants' excuse.

Based on the deemed admissions from the statement of claim, the court found the defendants liable for various financial contributions and debts related to the joint venture and a guaranteed mortgage.

The defendant, Hari Kaush Developments Inc. (HKD), brought a motion under sections 47 and 44(5) of the Construction Act to strike the statement of claim, discharge the plaintiffs' claim for lien, and return posted lien security.

HKD argued the lien was untimely and excessive.

The court found triable issues regarding both the timeliness of the lien (due to ambiguity on whether the old or new Construction Act lien period applied and conflicting evidence on the last date of supply) and the quantum of the claim (due to unclear accounting and disputed extras, where oral approval or acquiescence might override written approval requirements).

Consequently, the motion was dismissed in its entirety.

No costs were awarded to either party due to the plaintiffs' egregious delay in complying with undertakings.

The defendants brought a motion to set aside a previous summary judgment order, arguing they were unaware of the court date, had repeatedly requested a French-speaking lawyer, and were not properly served.

They also claimed an arguable defence regarding improvident property sales and excessive expenses.

The court dismissed the motion, finding no evidence of accident, mistake, or insufficient notice, and noted the defendants' significant delays and failure to file responding materials.

The court also found no merit to the alleged defences, including the unpleaded claim of improvident sale, and considered the prejudice to the plaintiffs.

The appellants, construction lien claimants, appealed a Divisional Court decision that granted priority to a vendor-take-back mortgage, including interest and enforcement costs, over their lien claims.

The Court of Appeal affirmed the Divisional Court's ruling, holding that the priority of prior mortgages under s. 78(3) of the Construction Act extends to arrears in interest and enforcement costs, consistent with long-standing judicial interpretation and practice, and that a vendor-take-back mortgage constitutes an "advance" for the purposes of the Act.

The appeal was dismissed with costs.

The plaintiffs sued their accounting firm and its principals for fraud, breach of contract, and misappropriation of funds after discovering that corporate taxes and payroll deductions had never been remitted to the CRA.

The court found the accounting firm and the son who misappropriated the funds liable for damages.

However, the court dismissed the claims against the father, finding he was not willfully blind and the firm was not his alter ego.

The court also rejected the defendants' argument that the claim was statute-barred under the Limitations Act, 2002.

The appellant appealed an order dismissing its claims against two corporate and individual respondents under Rule 21.01(1)(b) for lack of contractual privity and other deficiencies.

The motion judge had denied leave to amend.

The Court of Appeal upheld the dismissal, finding no error in the motion judge's conclusion that the respondents were not parties to the alleged contract (Mandate) and that other claims were unsustainable.

The court affirmed that reviewing a document expressly pleaded and incorporated into the statement of claim does not constitute considering evidence on a Rule 21.01(1)(b) motion and upheld the discretionary refusal to grant further leave to amend.

The plaintiffs, The Calbot Group Ltd. and 2649106 Ontario Inc. cob Synergy Capital, brought two motions: a Preservation Motion seeking to secure $5 million from land sale proceeds and a Jurisdiction Motion against certain foreign defendants.

The court first addressed the Jurisdiction Motion, finding that the plaintiffs failed to establish a real and substantial connection between the foreign defendants (NSR Canada Development Limited, New Silk Road Culturaltainment Ltd., and Sha Huang aka Sam Huang) and Ontario, as the alleged contract (MOU or verbal agreement) was not genuine and the corporate veil could not be pierced.

Consequently, the action against these foreign defendants and Mr. Huang was stayed.

The Preservation Motion, seeking relief under Rule 45.02, a Certificate of Pending Litigation (CPL), or Mareva injunction, was also dismissed.

The court found that the plaintiffs' claim was for damages, not a specific fund, and they failed to demonstrate a serious prospect of success or meet the stringent requirements for such remedies.

Costs were awarded to the successful defendants.

The defendants brought a motion to have a 2015 action tried together with two earlier actions (the Loan Actions) which had already been ordered to be tried together.

The court dismissed the motion, finding that the 2015 action did not arise out of the same transaction or occurrence as the Loan Actions, and there were no common questions of fact or law.

Furthermore, the court noted the defendants' unexplained delay in bringing the motion, which would have unnecessarily delayed the trial of the 2015 action currently scheduled to proceed.

The appellants (mortgagees) appealed a motions judge's decision that granted priority to construction lien claimants over the arrears in interest and enforcement costs of a prior registered vendor take-back (VTB) mortgage.

The Divisional Court allowed the appeal, holding that under s. 78(3) of the Construction Lien Act, a prior registered mortgage that goes into default retains priority over subsequent liens for the entire amount secured, including arrears of interest and reasonable enforcement expenses.

The Master's report confirming the mortgagees' priority to the funds paid into court was restored.

The defendants, NSR Toronto and Dapeng Wang, brought a motion to strike the plaintiffs' claims against them for breach of contract, unjust enrichment, oppression, and conspiracy.

The court found that neither moving defendant was a party to the underlying contract, precluding the breach of contract and derivative claims.

The court also held that the oppression remedy under the OBCA did not apply to a BC corporation, and the conspiracy claims lacked the requisite clarity and precision.

The motion was granted, and the claims against the moving defendants were struck without leave to amend.

The plaintiff electrical contractor sued the defendant property managers for unpaid invoices relating to electrical services and energy-efficient lighting installations.

The defendants claimed set-off and brought a separate action against the plaintiff and its principal for fraudulent or negligent misrepresentation, alleging defective work, failure to secure energy rebates, and uncertified fixtures.

The court found the plaintiff was entitled to $123,339.06 for unpaid invoices.

The defendants' set-off claims were dismissed as they failed to prove the plaintiff breached its contract or caused the alleged damages.

The defendants' separate action was dismissed as statute-barred under the Limitations Act, 2002, and the court declined to pierce the corporate veil to hold the plaintiff's principal personally liable.

Following a decision where the plaintiffs successfully opposed confirmation of a Master's Report on a single issue that granted them priority over the defendant mortgagees, the court determined the costs of the action.

The plaintiffs sought $117,279.01 based on an offer to settle, while the defendants argued for $3,260.65 due to the plaintiffs' limited success on most issues.

Balancing the proportionality of time spent on the successful issue against the fact that it yielded the plaintiffs' entire desired remedy, the court awarded the plaintiffs $35,000 in costs.

The Defendant Mortgagees brought a motion, and the Lienholders brought a cross-motion, for reconsideration of a judgment regarding priority under s. 78(3) of the Construction Act.

The court reviewed the test for reconsideration, noting it is reserved for rare circumstances involving obvious errors of inadvertence.

Finding that both parties were essentially attempting to re-argue legal questions and valuation findings appropriate for an appeal rather than reconsideration, the court dismissed both the motion and the cross-motion.

The plaintiffs, two lienholders, brought a motion opposing the confirmation of a Master's Report which found that the defendant mortgagees had priority over their construction liens under s. 78(3) of the Construction Act.

The Master had awarded the mortgagees all proceeds from the receivership sale of the contaminated property.

The Superior Court confirmed the Master's finding that the mortgagees had priority for the funds advanced under the vendor take-back mortgage.

However, the Court set aside the portion of the Report granting the mortgagees priority for additional fees, charges, and expenses not directly related to the sale, allowing the lienholders access to the remaining funds to satisfy their liens.

The appellant appealed the dismissal of his application for specific performance of an option to repurchase land.

The appellant had sold two lots to the respondent in 2012 for $1,160,000, with the respondent taking back a mortgage of $800,000.

The agreement included an option clause requiring the respondent to construct an industrial building within 30 months, failing which the appellant could repurchase at the original price.

The respondent failed to build and the appellant exercised the option in September 2016.

The application judge dismissed the claim, finding the option had expired and the appellant was not ready, willing and able to close.

The Court of Appeal allowed the appeal, finding the application judge erred in law regarding the "time is of the essence" clause, misapprehended the facts regarding the appellant's financial capacity, and incorrectly required tender when the respondent had clearly repudiated the agreement.

The court granted specific performance as the property was unique to the appellant's subdivision development plan.

Following a successful motion by Maple Drywall Inc. for leave to intervene, the court determined the issues of costs and the scope of intervention.

The court awarded costs to the intervenor, rejecting the defendants' argument that the motion materials were misleading, but reduced the requested amount as excessive.

The court also set the scope of the intervenor's participation, limiting its examination of each defendant to three hours.

Two unpaid construction lien claimants sought priority over a first mortgagee holding a $6.5 million vendor take-back (VTB) mortgage on a contaminated commercial property.

The court had to determine the actual value of the property on the date the first lien arose and whether the VTB constituted an 'advance' under section 78(3) of the Construction Lien Act.

The court found that the actual value of the property was at least $6.5 million, relying on arm's length offers rather than the lien claimants' expert opinion, and held that a VTB mortgage is an advance equivalent to an institutional mortgage.

Consequently, the mortgagee's interest took priority over the lien claimants.