Domenic Saverino

The appellant purchasers appealed a summary judgment finding them in breach of an agreement of purchase and sale (APS) for refusing to close due to alleged undisclosed easements.

The purchasers argued that Schedule A of the APS imposed an unqualified duty on the vendors to provide clear title, requiring the discharge of all easements, including standard utility easements.

The Court of Appeal upheld the motion judge's interpretation, finding that Schedule A did not conflict with paragraph 10 of the standard form agreement, which excluded minor utility easements.

The court reasoned that the purchasers' interpretation would lead to an absurd commercial result, as it would require the removal of essential services.

The appeal was dismissed, and costs were awarded to the respondents.

The defendants brought a motion to discharge a construction lien registered by the plaintiff roofing company, arguing the lien was not preserved and perfected within the timelines required by the Construction Lien Act.

The defendants claimed the work was completed earlier than the plaintiff asserted, relying on an inspection report and emails.

The court dismissed the motion, finding a genuine issue for trial regarding the actual completion date of the work, noting the defendants' evidence was contradictory and lacked sworn affidavits, and that the timeliness issue was not specifically pleaded in their Statement of Defence.

The Plaintiffs, Heather Downey and Francesco Marchese, sought an order compelling the Defendant, Douglas Arey, to perform various repairs to a residential property prior to trial.

The Plaintiffs claim entitlement to purchase the property from the Defendant at a fixed price, while the Defendant disputes the enforceability of that agreement.

The court dismissed most of the Plaintiffs' requests for repairs, finding that requiring the Defendant to complete significant repairs while the ownership dispute was ongoing would create an inequity, especially given the minimal monthly payment received from the Plaintiffs.

Only a repair addressing an immediate safety issue (electrical switch in the master bedroom) was ordered, with the ultimate cost to be determined at trial.

The plaintiff vendors brought a summary judgment motion against the defendant purchasers for damages arising from a failed residential real estate transaction.

The purchasers had refused to close, arguing that four utility easements registered on title were valid requisitions that the vendors failed to remove.

The court found that the easements were standard minor utility easements explicitly excepted under paragraph 10 of the Agreement of Purchase and Sale and were clearly shown on the survey attached to the agreement.

The court granted summary judgment to the vendors, finding the purchasers breached the contract, and awarded $430,000 in damages based on the loss from the property's resale.

The plaintiffs, John Moore Construction Management Inc. and Higgins Electrical Contracting Services Ltd., brought a motion to enforce accepted offers to settle and determine costs against Artworld Inc. Artworld had accepted settlement offers but delayed agreeing to judgments and disputed the plaintiffs' claimed costs, attempting to refer them to an assessment officer despite the Master's clear jurisdiction.

The Master found the motion necessary due to Artworld's unreasonable conduct and lack of good faith in resolving the costs issue.

The Master accepted the plaintiffs' costs calculations, with a slight adjustment for partial success, and awarded substantial indemnity costs for the motion due to Artworld's delaying tactics.

The appellant appealed a summary judgment decision that enforced an oral agreement of purchase and sale for the sale of his property to the respondents for $750,000 (after a $100,000 gift to his daughter).

The motion judge had found that the parties agreed to extend the closing date beyond August 31, 2016.

The Court of Appeal allowed the appeal, finding that the motion judge made a palpable and overriding error in making a factual determination regarding whether the parties had agreed to extend the closing date.

The court held that this crucial factual question, which turned on credibility assessments and competing versions of events, could not be properly resolved on summary judgment and required a trial.

The appellant appealed a summary judgment granted by the Superior Court of Justice ordering him to repay $337,653.67 to the respondent bank.

The claim arose from a forged cheque that the appellant had deposited to his bank account.

The appellant's primary complaint was that the motion judge erred in refusing to grant an adjournment of the summary judgment motion.

The appellant's counsel requested an adjournment the day before the hearing, citing recent retention and scheduling conflicts.

The Court of Appeal upheld the motion judge's decision to proceed with the motion, finding no error in the exercise of discretion and noting that the appellant had ample notice of the hearing date and that waiting until the last minute to request an adjournment was contrary to the principles and directives governing summary judgment motions.

Water Matrix Inc. sought a declaration that a judgment debt against Anna Maria Carnevale, arising from fraud, embezzlement, misappropriation, or defalcation while acting in a fiduciary capacity, or from obtaining property by false pretenses or fraudulent misrepresentation, was not released by her bankruptcy discharge.

The court examined the pleadings, proceedings, and factual context, including a prior Mareva injunction and Ms. Carnevale's criminal conviction for theft.

The court found that the judgment debt fell within sections 178(1)(d) and (e) of the Bankruptcy and Insolvency Act, as it arose from fraudulent conduct while Ms. Carnevale was in a fiduciary position and involved obtaining property by false pretenses.

The motion was granted, declaring the debt undischargeable.

The plaintiffs brought a motion to remove the defendants' counsel due to a conflict of interest, and a separate motion for leave to commence a derivative action on behalf of the Hindu Sabha Temple.

The defendants requested an adjournment of both motions, arguing that the motion to remove counsel could not be heard before or concurrently with the derivative action motion.

The court granted the adjournment, reserving costs, to allow both motions to be heard together at a later date, citing the procedural necessity of determining the derivative action motion first to establish the basis for the conflict motion.

The defendant brought a summary judgment motion to dismiss the plaintiff's claim regarding a fraudulently transferred property.

The court found serious credibility issues with both parties concerning the property transfers and a trust agreement.

The defendant, as trustee, failed in his duty to account to the plaintiff, the beneficial owner.

Given the significant credibility issues, the court dismissed the summary judgment motion, finding a genuine issue requiring a trial, and suggested a mini-trial or consolidation with related litigation.

The appellant appealed a summary judgment decision regarding its failure to remove goods from premises as required by an agreement of purchase and sale.

The Court of Appeal upheld the motion judge's findings that the appellant abandoned the goods by refusing multiple opportunities to remove them, that damages were properly calculated based on lost rent, that the respondent did not fail to mitigate damages, and that the respondent was entitled to forfeit a $100,000 holdback due to the breach.

The court rejected arguments that the Commercial Tenancies Act procedures should apply by analogy and found the respondent acted commercially responsibly in selling the goods at public auction.

The moving parties (respondents in the main application) brought a motion to transfer an application from Brampton to Toronto.

The responding party opposed the motion and requested that a related application issued in Toronto be transferred to Brampton.

The court applied the factors under Rule 13.1.02 of the Rules of Civil Procedure and found that the related action and application were based on the same factual matrix and should be heard together to avoid duplicative proceedings.

The court dismissed the motion to transfer the Brampton application to Toronto and directed that a motion to transfer the Toronto application to Brampton be brought in the appropriate jurisdiction.

The moving party, a law firm representing the general contractor in a consolidated construction lien and breach of contract action, brought a motion for a charging order under s. 34 of the Solicitors Act for unpaid legal fees.

The motion was opposed by a subcontractor who had obtained a judgment against the general contractor and served a notice of garnishment on the property owners.

The court granted the charging order, finding that the law firm was instrumental in recovering funds for its client.

The court further held that the funds recovered were not trust funds under the Construction Lien Act, and therefore the solicitor's charging order took priority over the subcontractor's garnishment notice.

The appellants appealed an order striking their statement of defence for failing to comply with multiple interlocutory orders, including a discovery plan.

The underlying action involved allegations of fraudulent conveyance.

The Divisional Court found that the appellants had a history of contumelious conduct, delay, and non-compliance with court orders.

The court held that the Master made no palpable and overriding error in striking the pleadings, and the appeal was dismissed.

The plaintiffs sought costs on a substantial or partial indemnity basis after obtaining a judgment for $11,826.98 in a mortgage dispute.

The court declined to award costs to either party.

The court found that the plaintiffs had grossly overreached by demanding almost four times their entitlement before agreeing to discharge the mortgage, while the defendant had maintained an unreasonable position regarding the interest rate, rendering the matter virtually unsettleable.

The plaintiff appealed a Master's order requiring it to post security for costs.

The plaintiff argued that because its statement of claim included a request for an oppression remedy under the Business Corporations Act, it should be immune from a security for costs order.

The Superior Court of Justice dismissed the appeal, finding that the Master correctly determined the true essence of the action was a claim for unpaid invoices, not oppression, and therefore the security for costs order was appropriate.

The plaintiffs brought a motion for summary judgment to determine the amount owing by the defendant on a mortgage.

The court found that the stated interest rate of 0.8% was a typo and the agreed rate was 8%.

The court disallowed the plaintiffs' claims for a lender's fee, an automatic renewal fee, and administrative fees, finding the renewal fee to be a penalty and the others unsupported by evidence.

The court also found the plaintiffs had received a payment of $86,184.68, contrary to their assertions.

The defendant was ordered to pay the remaining balance of $11,826.98, and the plaintiffs were denied their pre-litigation legal fees.

The defendants (owners) brought a motion under Rule 59.06(2)(c) for directions on carrying a previous judgment into operation.

The dispute centered on whether the owners were required to pay the notice holdback amount twice: once to the successful subcontractor lien claimants under the Construction Lien Act, and again to the general contractor for breach of contract.

The court held that the owners, having properly retained the holdback, were not required to pay twice.

Payments made to the subcontractors from the holdback trust fund are to be set off against the amount owing to the general contractor under the judgment.

The moving party purchased a commercial property from the responding party, who agreed to lease back a portion of the premises for three months to remove its contents.

The responding party failed to vacate, leading the moving party to lock them out and eventually sell the abandoned contents.

The moving party sought summary judgment for outstanding rent, utilities, and the release of a holdback.

The court granted summary judgment, finding no genuine issue requiring a trial, and awarded damages for the overholding period while ordering the release of the holdback funds.

The defendants brought a motion for security for costs against the plaintiff, Marvello Construction Ltd., under Rule 56.01(1)(d) and (e).

The plaintiff claimed impecuniosity but failed to provide sufficient financial disclosure for itself or its principals, as required for corporate plaintiffs.

The court found the plaintiff's claim was not frivolous or vexatious and that the action, while referencing the Ontario Business Corporations Act, was fundamentally a claim for unpaid invoices, thus not immune from a security for costs order.

The motion was granted, and the plaintiff was ordered to post security for costs in tranches.