Carmine Giuseppe Scalzi

The plaintiff brought a motion for summary judgment to collect on a $500,000 promissory note.

The defendants failed to file responding materials on time, citing a conflict of interest and an internal corporate deadlock, and sought an adjournment on the eve of the motion.

The court refused the adjournment, finding the defendants' internal disputes did not constitute a defence to the debt, and granted summary judgment to the plaintiff for the full amount claimed.

The plaintiff mortgage assignee sought interim relief pending a motion for possession after the defendant mortgagor allegedly re-entered the retail unit, interfered with a court-appointed receiver's sale efforts, and retained residential rents despite attornment.

The defendant relied on a recent agreement of purchase and sale to argue no interim terms were necessary, but the court found the agreement highly conditional, non-arm's length in appearance, and inadequate to protect the plaintiff.

Applying the conventional interim relief analysis, the court found a strong prima facie case, irreparable harm from further erosion of the security, and a balance of convenience favouring restraint of further interference.

Interim orders granted possession, protected rent collection rights, restrained interference with mortgage enforcement, and required monthly payments toward carrying costs; costs were reserved.

The plaintiff mortgagee sought possession of mortgaged premises and requested interim terms at a case conference pending the return of the main motion.

The defendants contested the court's jurisdiction to make interim orders at a scheduling case conference.

The court held that Rule 50.13(6) and Rule 1.05 of the Rules of Civil Procedure authorize a judge to make interlocutory orders on terms at a case conference, provided notice is given.

The matter was adjourned to a brief hearing to determine the interim terms.

The applicant municipal council sought an order under the Municipal Conflict of Interest Act to allow conflicted councillors to participate in litigation decisions.

A ratepayer had sued eight of the nine councillors personally for $210 million, leaving the council without a quorum to manage the litigation.

The court granted the order to ensure the municipality could function, but imposed a condition requiring the conflicted councillors to obtain judicial approval before agreeing to any settlement of the litigation, analogous to the process for parties under disability.

This is a costs endorsement following an appeal where the Court of Appeal set aside the order of the application judge dated October 5, 2015.

The parties had contested two issues on the application with divided success.

The application judge had reduced the respondent's costs from an agreed amount of $42,500 to $30,000 due to partial success.

On appeal, the Court of Appeal determined that the appellant succeeded on both issues argued at the application and therefore was entitled to the full agreed costs amount of $42,500 for the application below, in addition to $20,000 for the costs of the appeal.

The appellant appealed a motion judge's order staying an action for breach of contract.

The motion judge found that the contract required disputes to be resolved by arbitration in South Carolina.

The central issue was whether the contractual rights assigned to the appellant were limited to those in a Joint Venture Marketing Agreement (JVMA) or included terms from an International Sales Agency Agreement (ISAA) containing an arbitration clause.

The Court of Appeal upheld the motion judge's findings that both agreements were assigned to the appellant and that the parties conducted themselves in accordance with the ISAA, including its arbitration clause.

The appellant appealed from a Superior Court decision that found a commercial lease for fitness club premises did not include the basement, despite the tenant's long-standing use of it.

The Court of Appeal reversed, holding that when the lease is interpreted in light of all surrounding circumstances—particularly email correspondence between the parties' lawyers—the parties clearly intended to lease the entire premises, including the basement, on a lump sum basis.

The court found the application judge erred in law by failing to consider all relevant circumstances, despite acknowledging the need to do so.

A case conference was held regarding an application by a purchaser for the return of a $430,000 deposit from a failed real estate auction, and a related action by the auctioneer for its commission.

The court ordered a consent interpleader allowing the auctioneer's counsel to pay the deposit into court.

The court also set a timetable for a cross-application by the auctioneer and stayed the related action pending the outcome of the applications.

The defendants, having successfully obtained a stay of action based on an arbitration clause, sought partial and substantial indemnity costs totaling $68,449.55.

The plaintiff conceded entitlement to costs but argued the amount was excessive.

The court applied the principle that costs should be fair and reasonable for the unsuccessful party, not merely the actual costs incurred.

While acknowledging the importance of the matter to the defendants and the plaintiff's conduct contributing to increased costs, the court found the claimed hours excessive for a two-hour motion.

Considering an offer to settle, the court awarded costs at the higher end of a reasonable range, fixing them at $40,000.00.

The plaintiff initiated an action alleging fraud, deceit, and misrepresentation against the defendants concerning a property transaction and mortgage.

Despite early settlement offers from the defendants, the plaintiff did not accept them.

The action was ultimately dismissed on consent immediately prior to a scheduled summary judgment motion.

The court, in this costs ruling, awarded the defendants full indemnity costs, determining that the plaintiff's allegations were ill-founded and significantly detrimental to the defendants' professional reputations, thereby justifying a higher scale of costs.

A commercial landlord brought an application seeking interpretation of a lease and additional rent for a basement area occupied by the tenant’s assignee following insolvency proceedings.

The court examined the lease language, surrounding negotiations, and principles of contractual interpretation under Sattva.

It held that the basement was not part of the leased premises, but the lease rent was calculated on a per‑square‑foot basis.

The tenant’s assignee was therefore liable to pay rent for the basement based on the lease rate for its square footage from the date of assignment.

The landlord’s separate claim for rectification of the lease to reflect greater square footage of the upper floors was dismissed because the landlord had expressly waived the contractual right to remeasure the premises.

The defendant brought an urgent motion to set aside a default judgment and the noting in default in a mortgage enforcement action, and sought a stay of a writ of possession after the sheriff had already executed the writ and removed the family from the property.

The moving party asserted that funds would shortly become available from a third party to pay out the mortgage and requested a brief stay.

The court found there was insufficient evidence that the promised funds would be advanced and noted the moving party had known about the order for weeks without taking appropriate procedural steps.

The court emphasized the diligence of the mortgagee and the protections afforded to mortgagees in enforcement proceedings.

The requested stay was refused and the writ of possession remained operative, subject to a limited opportunity to repurchase the property upon immediate payment.

A self‑represented party brought a motion opposing confirmation of interim and final reports prepared by a court‑appointed receiver in a partnership dissolution proceeding and sought leave to commence legal proceedings against the receiver and its president.

The court found the moving party had possessed copies of the receiver’s reports for at least five years before bringing the motion.

Any potential claim against the receiver was therefore barred by the two‑year limitation period under the Limitations Act, 2002.

The court also held that the equitable doctrine of laches applied given the extensive delay and prejudice to the respondents.

The motion was dismissed and costs were awarded to the respondents.

The defendants sought leave to bring a motion for summary judgment after the action had already been set down for trial.

The court considered whether Rule 48.04(1) of the Rules of Civil Procedure required leave for such a motion and the appropriate test for granting leave.

The court held that summary judgment motions fall within the phrase “any motion” under the rule and therefore require leave once an action has been set down for trial.

However, the court rejected the rigid requirement that the moving party demonstrate a substantial and unexpected change in circumstances.

Leave should be granted where the motion may reduce issues, shorten the trial, or eliminate the need for trial without causing undue delay.

The appellants appealed an order granting them an adjournment on the condition of a limited draw against debtor-in-possession (DIP) financing.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's order.

The court held that since the appellants sought the indulgence, the terms imposed were an entirely reasonable exercise of the motion judge's discretion.