David M. Pomer

This decision addresses a motion by Mr. Diab for leave to issue a writ of possession against Ms. Poka to enforce prior court orders requiring her to vacate the matrimonial home.

The court reviews the history of orders regarding the sale and possession of the home, the parties' compliance, and the need for further orders to ensure the closing of the sale.

The court finds Ms. Poka is not currently in breach of the sale and vacate orders but makes further orders to ensure compliance and the successful closing of the sale, including surrender of keys, removal of belongings, and financial disclosure.

The Applicant brought a motion seeking financial disclosure, an advance on equalization, and costs.

The Respondent provided some disclosure and the advance payment just before the motion hearing, rendering the advance payment request moot.

The court found the Applicant largely prevailed due to the Respondent's "11th hour" compliance, which was deemed unproductive.

The court ordered the Respondent to provide the remaining disclosure within 15 days and pay $10,000 in costs to the Applicant, finding the requested $25,000+ to be unreasonable for a one-hour motion.

The appellant, Anna Marlena Butryn, appealed a summary judgment order enforcing minutes of settlement in mortgage enforcement proceedings.

She argued she signed the minutes under undue influence and duress from her husband, John Chetti, and without independent legal advice.

The Court of Appeal upheld the motion judge's decision, finding no evidence the respondent had knowledge of the alleged undue influence/duress, that the minutes of settlement provided significant benefits to the appellant, and that she was represented by experienced litigation counsel, making independent legal advice from a separate lawyer unnecessary.

The court reiterated that a spousal relationship does not automatically create a presumption of undue influence requiring third-party inquiry unless coupled with a manifestly disadvantageous transaction.

The plaintiff mortgagee brought a motion for summary judgment against the defendant mortgagors for default on a second mortgage.

The plaintiff claimed the mortgage was renewed at a higher interest rate and sought various fees.

The defendants disputed the renewal and the propriety of many charges.

The court found the mortgage was not renewed and disallowed most of the plaintiff's claimed charges, including the renewal fee, various administration fees, and a three-month prepayment penalty, citing s. 8(1) of the Interest Act.

The court determined the correct amount to discharge the mortgage based on the original interest rate and allowed only a proper discharge fee.

The plaintiff, Rose-Terra Investments Inc., moved for summary judgment against the defendant, Anna Marlena Butryn, seeking damages for her default on minutes of settlement related to a mortgage.

The defendant raised several defenses, including duress, undue influence, lack of independent legal advice, bare trustee status, and want of consideration.

The court dismissed all of Ms. Butryn's defenses, finding no genuine issue for trial, and granted summary judgment in favour of the plaintiff, awarding damages for the shortfall on the property sale and associated costs.

The Applicants, beneficiaries of an estate, sought costs against the Respondent, the initially appointed estate trustee, after the court ordered the Respondent to be passed over due to unreasonable conduct and delay in estate administration.

The court awarded the Applicants costs of $29,276.15, payable personally by the Respondent, to be set off against any executor compensation.

The decision emphasized the modern approach to costs in estate litigation, focusing on fairness, proportionality, and reasonableness, and noting that estate trustees are not indemnified for costs incurred defending personal interests or due to unreasonable actions.

This endorsement addresses the costs of a motion where the plaintiff, Environmental Building Solutions Corporation, successfully obtained leave to amend its statement of claim in a construction lien action.

The defendants had opposed the motion, arguing the claim was statute-barred.

The court found the plaintiff's motion was brought within the limitation period and granted leave to amend.

Consequently, the plaintiff sought costs on a partial indemnity scale.

The court awarded costs to the plaintiff, finding the hourly rate claimed by counsel reasonable after adjusting for inflation and the time spent proportionate to the issues.

The defendants, 2420124 Ontario Limited and 2420125 Ontario Limited, were ordered to pay $14,415.96 in costs, including fees, HST, and disbursements.

The respondent father moved to set aside a default judgment obtained after an uncontested trial, arguing he was unaware of the proceedings and had an arguable defense regarding a joint family venture and imputed income for child support.

The court found the father moved promptly, provided a plausible explanation for non-participation due to lack of notice, and demonstrated arguable defenses.

The court set aside the default judgment and associated costs, dismissing the applicant's cross-motion to compel compliance with the original order.

Following a successful motion to vacate a construction lien and related Certificate of Action, the moving parties sought costs on a substantial indemnity scale.

The court found that the moving parties' first offer to settle met the requirements of Rule 49, entitling them to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

After accounting for costs already paid by the responding party and applying a proportionality reduction, the court fixed the costs award at $18,000.

Following a decision granting in part the defendants' motion to vacate a construction lien, the successful moving parties requested to address costs in writing.

The court granted the request, noting the general expectation that costs be dealt with at each stage of a proceeding and the lack of prejudice to the plaintiff.

A timetable for written costs submissions was established.

The defendants brought a motion to vacate a construction lien and dismiss the plaintiff's action.

The plaintiff admitted the registered lien amount of $211,875 was incorrect and should have been approximately $167,000, relating to a subsequent oral contract rather than the initial formal contract pleaded.

The court held that the material misstatement in the lien amount could not be saved by section 6 of the Construction Lien Act.

The court vacated the lien and certificate of action but refused to strike the pleadings or dismiss the action, instead ordering the plaintiff to bring a motion to amend its statement of claim to assert the second contract for quantum meruit and breach of contract claims.

The applicants, estate trustees of Frank Mammone, brought a motion to vary a previous court order for the sale of two properties under the Partition Act, due to the respondents' persistent non-cooperation.

The respondents, Emilio Mammone and Density Garden Enterprises Inc., brought a cross-motion seeking to purchase the estate's interest in the properties.

The court found that the original order was not working and required revision.

It granted the applicants' motion, modifying the sale process to give them unilateral control over retaining a real estate agent and listing the properties, with any offer acceptance subject to court approval.

The respondents' cross-motion was implicitly dismissed.

The Estate of Frank Mammone sought an order for the sale of two properties and the equal division of proceeds.

The respondent, Emilio Mammone, brought a cross-application to enforce an alleged agreement for the transfer of Frank's interest in the properties for $110,000, purportedly made just prior to Frank's death.

The court found no enforceable agreement, ruling that the respondent's evidence lacked the necessary corroboration under Section 13 of the Ontario Evidence Act and failed to satisfy the requirements of Section 4 of the Statute of Frauds or the doctrine of part performance.

Consequently, the respondent's cross-application was dismissed, and the properties were ordered to be sold as requested by the applicants, with an accounting for Emilio Mammone's management services since Frank's death.

The applicants were awarded partial indemnity costs.

A default hearing brought by the Director, Family Responsibility Office against a support payor for arrears of child and spousal support totalling $68,335.56.

The payor had been in default since December 2008 following job loss and subsequent development of severe clinical depression and anxiety disorder.

The Director sought an order for incarceration.

The court found that the payor had discharged his burden of proof by demonstrating he was unable, for valid reasons, to pay the arrears or make subsequent payments.

The court dismissed the incarceration remedy and instead imposed reporting and disclosure obligations, including annual submission of tax returns, financial statements, and medical reports regarding the payor's employability.