Carlo A. Pasqualino

The decision addresses a motion by MGW Home Designs Inc. to restore a construction lien action to the trial list after it was administratively struck, and a cross-motion by Domenic Pasqualino to discharge the lien and dismiss an adjudicator’s order.

The court applies the Reid Factors to determine whether to restore the action, finds no abuse of process by MGW, and upholds the enforceability of the adjudicator’s order pending final determination.

The court also addresses the interplay between adjudication and lien proceedings, limitation period issues, and awards substantial indemnity costs to MGW.

The appellant appealed his conviction for failing or refusing to comply with a breath demand following a motor vehicle collision.

He argued that the police lacked valid grounds to make the demand, that the demand was not made as soon as practicable, and that he had a reasonable excuse for refusing because he was not the driver.

The Superior Court of Justice dismissed the appeal, finding no errors in the trial judge's application of the law or assessment of credibility, and declined to depart from binding Supreme Court precedent establishing that not driving is not a reasonable excuse for refusing a valid breath demand.

The appellant registered an adjudicator's determination under the Construction Act but failed to give the required notice within 10 days.

The motion judge voided the enforcement steps and barred the appellant from taking any further steps to enforce the determination.

On appeal, the Divisional Court held that while voiding the initial enforcement steps was an appropriate discretionary remedy for the non-compliance, barring future enforcement was disproportionate and contrary to the prompt payment scheme of the Act.

The appeal was allowed and the bar on future enforcement was struck out.

The appellant, MGW-Homes Design Inc., appealed an order vacating a writ of enforcement related to an adjudicator's determination under the Construction Act.

The primary issue was whether the Court of Appeal had jurisdiction to hear the appeal, which depended on whether the order constituted a "judgment" under s. 71(1) of the Construction Act, in which case the appeal would lie to the Divisional Court.

The Court of Appeal, interpreting "judgment" broadly consistent with prior case law and the Act's purpose of efficiency, found that the order was a "judgment" under s. 71(1).

Consequently, the appeal was dismissed for lack of jurisdiction, as it properly belonged in the Divisional Court.

This decision addresses an application by the defendant for the appointment of a case management judge in a sexual assault proceeding.

The defendant sought the appointment after a judicial pre-trial judge directed that Charter motions, specifically a stay of proceedings related to alleged bail delay, be heard after the trial evidence on the merits.

The defence argued that the pre-trial judge lacked jurisdiction to set such a schedule over their objection and that a case management judge held exclusive authority for scheduling.

The court denied the application, affirming the judicial pre-trial judge's jurisdiction to set trial and motion schedules for efficiency, noting that decisions on stays of proceedings are typically deferred until trial evidence is complete to assess prejudice.

The court also clarified that the powers of a case management judge are not exclusive for scheduling and that the trial judge retains ultimate discretion to modify the schedule.

Domenic Pasqualino brought a motion to vacate a writ of enforcement issued by MGW Homes Design Inc. under the Construction Act, which was based on an Adjudicator's determination.

MGW failed to provide notice of filing the determination with the court within the statutory 10-day period as required by s. 13.20(3) of the Act.

The court ruled that strict compliance with this notice requirement is mandatory for the determination to be enforceable as a court order.

Consequently, the writ was deemed void due to non-compliance, and Pasqualino's motion was granted.

The court also addressed the issue of costs, awarding them to Pasqualino.

The applicant sought leave to bring an application for judicial review of an adjudicator's interim determination under the Construction Act, which ordered him to pay the respondent contractor $119,314.

The applicant argued the adjudicator lacked jurisdiction because the contract had been terminated and thus 'ceased to exist', and that the adjudication conflicted with an existing lien action where security had been posted.

The Superior Court of Justice dismissed the motion, finding that a terminated contract does not 'cease to exist' for the purposes of the Act, the jurisdictional issue was not raised before the adjudicator, and the Act expressly permits concurrent adjudication and lien proceedings.

The appellant sought leave to bring an application for judicial review of an adjudicator's interim determination under the Construction Act, which ordered him to pay the respondent contractor $119,314.

The appellant argued the adjudicator lacked jurisdiction because the contract had been abandoned and thus 'ceased to exist', and because a lien had already been registered and bonded off.

The Divisional Court dismissed the motion, holding that jurisdictional challenges must be raised before the adjudicator first, an abandoned contract does not cease to exist, and the Act expressly permits concurrent adjudication and lien proceedings.

During a criminal trial for an Over 80 charge, the Crown sought to admit an utterance made by the accused.

The court conducted a blended trial/voluntariness/Charter application.

Justice Latimer ruled that the Crown failed to prove the utterance voluntary beyond a reasonable doubt, primarily due to a deficient and largely inaudible audio recording of the interaction between the police officer and the accused in the breath room.

The court emphasized the Crown's burden to establish a sufficient record for voluntariness.

As a result of this ruling, the Crown advised they could not otherwise prove the charge, leading to its dismissal.