Domenic Saverino

The plaintiffs, Amber Lighting Limited and Alka Bhargava, brought a motion for summary judgment against the defendants, Rosa Petrozza and Vito Petrozza, seeking $123,500 plus interest.

The dispute arose from a mortgage default, with the core issue being whether the defendants were entitled to these additional funds in priority to the plaintiffs' third mortgage.

The court dismissed the motion, finding that a prior default judgment by Gray J. had already determined the amount owing under the second mortgage, including the additional funds.

The plaintiffs' attempt to dispute this was deemed a collateral attack on that judgment, which they had not moved to set aside despite being given the opportunity.

The plaintiff, Kwik Snaks Ltd., moved to set aside a Registrar's Order dismissing its action for delay, pursuant to Rule 37.14(8) and 48.14(1) of the Rules of Civil Procedure.

The action, a collection matter for unpaid invoices, had a protracted procedural history marked by extensive documentary production disputes and multiple motions.

The plaintiff's counsel attributed the delay to inadvertence and a dispute over photocopying costs, while the defendants argued the delay demonstrated an intent not to pursue the action and claimed prejudice due to lack of discovery and fading witness memories.

Applying the contextual approach to the Reid factors, the court found the plaintiff always intended to proceed, the delay was largely inadvertent, and the defendants failed to demonstrate actual prejudice in this document-driven case.

The motion was granted, the dismissal order set aside, and the action restored to the trial list with a new timetable for discovery and trial setting.

The court also ordered the plaintiff to release photocopied documents without charge, noting the discovery plan did not provide for reimbursement.

This is a costs endorsement following a proceeding where the applicants sought recovery of furniture and damages.

Success in the main application was divided: furniture was ordered returned, but no damages were awarded.

The applicants had also been largely unsuccessful on an earlier motion to file additional affidavits.

The court then assessed costs, considering offers to settle made by both parties.

The respondents' offer to return furniture and pay partial indemnity costs was deemed as favourable as the applicants' eventual outcome.

Applying Rule 49.10(2), the court determined that the applicants were entitled to costs up to the date of the respondents' offer, and the respondents were entitled to costs thereafter, including for the unsuccessful motion.

After reviewing detailed bills of costs, the court found the applicants were entitled to $8,636 and the respondents to $9,006.

Due to the small difference, no costs were ultimately payable by either party.

The plaintiff contractor was hired to renovate a barn for the defendants under a lump sum contract.

The contractor claimed the defendants agreed to a second contract with an increased price for a third floor, and also claimed for various oral extras.

Two unpaid suppliers registered construction liens against the property.

The court found that the defendants only agreed to the original contract and that no third floor was built.

The court assessed the claimed extras, allowing some and dismissing others.

The court also determined the owners' holdback liability to the lien claimants under the Construction Lien Act.

The appellants appealed an order of the motion judge.

The motion judge found that the appellants had not paid the $300,000 required to extend a grace period, there was no evidence a lender was prepared to advance the balance of funds under a settlement agreement, and the respondent reasonably refused to sign a consent to lift a Mareva injunction.

The Court of Appeal found these findings were fully supported by the record, rejected the proposed fresh evidence, and dismissed the appeal with costs.

The plaintiff brought a motion for summary judgment to recover $52,700, representing the balance of $75,000 advanced to the defendants.

The plaintiff argued the funds were a loan, while the defendants claimed they were an investment in a third-party scheme that ultimately failed.

Applying the summary judgment framework, the court found no genuine issue requiring a trial, determined that the funds were advanced as a loan, and granted judgment in favour of the plaintiff for the full amount claimed.

The applicants brought an application for specific performance of an oral agreement for the respondents to store their furniture and paintings until they moved to Argentina.

The respondents claimed some of the antique furniture was given to them as a gift.

The court found the respondents failed to prove an intention to donate and ordered specific performance for the return of the items.

However, the court dismissed the applicants' claims for damages related to shipping containers and storage costs due to vague evidence.

The Plaintiff, Water Matrix Inc., brought a motion for judgment in the principal amount of $1,302,377.98 plus interest, following the collapse of a settlement agreement with the Defendants, Anna Maria Carnevale, Stephen M. Cordeiro, and Cordeiro Trucking Limited.

The underlying action was a civil fraud claim against Ms. Carnevale, the Plaintiff's former corporate comptroller, for allegedly transferring over $1.2 million.

A settlement agreement under Rule 49 required the Defendants to pay $750,000 and sign a Consent to Judgment for $1,585,515.00, to be filed upon default.

The Defendants defaulted on the payment, even after a 30-day extension, and failed to provide evidence of financing or meet conditions for lifting a Mareva injunction on Ms. Carnevale's property.

The court found the Defendants breached the settlement agreement and that the Plaintiff's refusal to lift the injunction was reasonable.

Judgment was granted in favour of the Plaintiff for the full amount and costs.

Following a judgment allowing the appeal in part, the Court of Appeal received written submissions on costs.

The court awarded the appellants their costs of the appeal and related motions, fixed at $25,000 inclusive of disbursements and taxes.

The appellants defaulted on a loan secured by both a promissory note and a mortgage.

The promissory note contained a provision escalating the interest rate from 0.75% to 10% upon default, while the mortgage contained late payment and default fees.

The motion judge granted summary judgment enforcing the 10% interest rate and the fees.

On appeal, the Court of Appeal held that because the promissory note and mortgage secured the same debt, section 8 of the Interest Act applied to both instruments.

The interest escalation provision and the late fees were found to violate section 8's prohibition against penalties on arrears secured by a mortgage and were set aside.

The appellant mortgagor appealed a judgment granting the respondent mortgagees $876,797.55 owed under a mortgage agreement.

The appellant argued the motion judge erred by granting judgment instead of directing an accounting, as the amounts were contested.

The Court of Appeal dismissed the appeal, finding the motion judge had sufficient evidence to substantiate the claims and the appellant failed to provide evidence to confirm the amounts owed.

The court noted that any arithmetical errors should have been addressed by returning to the motion judge for directions.

Mortgagees moved for judgment for the outstanding balance remaining after a mortgaged property was sold and creditors paid.

The only remaining issue concerned the final calculation of the mortgage debt after construction liens registered against the property were discharged.

The responding mortgagor, through newly retained counsel, challenged the mortgage calculations but provided no alternative figures and raised concerns about discrepancies in earlier accounting and a potential conflict involving the lender’s counsel.

The court found the plaintiffs’ sworn accounting reliable and concluded the objections amounted to delay tactics.

Judgment was granted for the outstanding mortgage balance together with contractual post‑judgment interest.

The plaintiff brought a motion for summary judgment.

Four days before the hearing, the defendant delivered a detailed responding affidavit alleging accounting irregularities.

The plaintiff sought an adjournment to deliver reply evidence and cross-examine the affiant.

The defendant opposed, arguing Rule 20 does not permit reply evidence by a moving party.

The court held that the moving party in a summary judgment motion may deliver reply evidence to ensure the court can gain a full appreciation of the facts.

The adjournment was granted, leave to file reply evidence was given, and the defendant was ordered to pay costs thrown away.

A lender brought a motion seeking judgment under loan guarantees, possession of mortgaged property, and leave to issue a writ of possession following default under a standstill agreement and related loan documents.

The respondents challenged the procedure, service of demand, jurisdiction of the Commercial List, and compliance with notice requirements under the Mortgages Act.

The court found no material facts in dispute and held that proceeding by application was appropriate under Rule 14.05(3)(h) of the Rules of Civil Procedure.

The court determined that the guarantees were enforceable, notice requirements had been satisfied, and the applicant was entitled to possession and related remedies.

Judgment was granted for the indebtedness together with possession, a writ of possession, and costs.

The plaintiffs brought a motion seeking a stay of an order that had discharged a certificate of pending litigation obtained ex parte, pending determination of their motion for leave to appeal.

The prior order discharged the certificate on the basis that the plaintiffs failed to provide full, fair, and frank disclosure, including failing to disclose earlier related proceedings.

Applying the test analogous to an interlocutory injunction—serious issue, irreparable harm, and balance of convenience—the court considered the procedural history and an existing consent order preserving the status quo.

The court concluded that maintaining the status quo pending the leave to appeal motion was appropriate to avoid prejudice to either side.

The order discharging the certificate was stayed, subject to limited exceptions allowing the defendants to deal with specified properties, and a scheduled summary judgment motion was adjourned pending the leave motion.

The appellant, acting as estate trustee, brought a motion for a stay of an order requiring her to pay $10,000 as security for costs pending her motion for leave to appeal that order.

The underlying action against her father's former common-law spouse was dismissed on summary judgment.

The appellant argued that a serious issue to be tried existed regarding whether American Sign Language (ASL) constitutes an oral language, which would exempt an alleged agreement from the writing requirement of s. 55 of the Family Law Act.

The court found that the appellant failed to establish a serious issue to be tried, noting the previous judge's finding that the appeal was almost certain to fail.

The motion for a stay was dismissed with costs.

The plaintiff contractor brought a motion to amend its statement of claim to remove references to the Construction Lien Act and proceed on a breach of contract basis after its construction lien had previously been vacated as out of time.

The defendants opposed the amendment and brought a cross-motion seeking dismissal of the action for delay under Rule 24.01 of the Rules of Civil Procedure.

The court held that the original statement of claim already implicitly advanced a contractual claim and that the order vacating the lien did not determine the contractual issues.

Although the action had experienced significant delay and periods of inactivity, the court found the delay sufficiently explained and not prejudicial to a fair trial.

The plaintiff was permitted to amend the pleadings and the defendants’ cross-motion for dismissal was dismissed.

Following an unopposed motion striking a corporate plaintiff from a statement of claim due to lack of corporate capacity after dissolution, the defendants sought costs on a substantial indemnity basis against both the corporate and individual plaintiffs.

The court considered whether the conduct of the litigation justified elevated costs and whether the individual plaintiff should be personally liable.

The court held that substantial indemnity costs are reserved for exceptional circumstances such as unproven allegations of fraud or litigation misconduct, and those circumstances were not present.

The evidence linking the individual plaintiff to the corporation was insufficient to impose costs against him personally.

Costs were awarded only against the corporate plaintiff on a partial indemnity basis.

Following a civil action concerning a dispute over the proceeds from the sale of a jointly owned house, the plaintiff obtained judgment for a portion of the claimed amount.

The plaintiff then sought costs of the action on a partial indemnity basis.

The court noted that although there were settlement discussions, none of the offers complied with Rule 49 of the Rules of Civil Procedure and therefore did not justify elevated costs.

While the court accepted the reasonableness of the hourly rate and time spent, it considered the claimed amount somewhat high given the value and nature of the dispute.

The court exercised its discretion and awarded reduced partial indemnity costs.

The defendant brought a motion for summary judgment dismissing a claim by an estate seeking repayment of common expenses allegedly owed by a former common-law partner pursuant to a verbal agreement.

The estate asserted that the deceased had paid the partner’s share of expenses during cohabitation on the understanding she would later repay him once disability benefits were received.

The court held that any such arrangement constituted a domestic contract under the Family Law Act and was unenforceable because it was not in writing as required by s. 55(1).

Arguments that the parties were not spouses, that their disabilities prevented written agreements, and that the statute had not been pleaded were rejected.

Summary judgment was granted and the action dismissed.