Emilio Bisceglia

The Tribunal held a Case Management Conference regarding a claim for compensation under the Expropriations Act arising from the expropriation of the claimant's property.

The parties agreed to an eight-day hearing on the merits.

The Tribunal issued a Procedural Order setting the hearing dates and establishing the pre-hearing timeline for discoveries, expert reports, and mediation.

Siemens Canada Limited brought a motion for summary judgment seeking to limit its liability to Symtech Innovations Ltd. to admitted holdback and to dismiss Symtech's significant prolongation claim.

The court found that Symtech failed to provide timely contractual notice of its prolongation claim, which was a condition precedent to maintaining the claim.

Consequently, the prolongation claim was dismissed.

However, the court found genuine issues requiring a trial regarding Siemens' alleged breaches of the sub-subcontract and the quantification of other earned and unpaid amounts.

The court also declined to grant summary judgment in a related breach of trust action, noting jurisdictional differences.

The appellant, a Markham city councillor, appealed the dismissal of her anti-SLAPP motion (pursuant to s. 137.1 of the Courts of Justice Act) against an action brought by a developer.

The developer's action alleged defamation and other torts arising from the councillor's opposition to a development and her report to the police regarding an incident with the developer.

The Court of Appeal found that the motion judge erred by adopting an overly narrow interpretation of "expression relating to a matter of public interest" and by conflating the stages of the s. 137.1 test.

The Court clarified that reporting concerns to the police and a city councillor's actions related to their public duties are matters of public interest, warranting a broad interpretation at the initial stage of the anti-SLAPP analysis.

The appeal was allowed, and the matter was remitted to a different judge to consider the second stage of the s. 137.1 test.

The Ontario Land Tribunal held a Case Management Conference regarding a claim for compensation arising from the expropriation of property by Metrolinx.

The Tribunal scheduled a 13-day video hearing to commence in October 2024 and issued a Procedural Order to govern the proceeding.

The defendants appealed an Associate Judge's order requiring them to produce further and better affidavits of documents.

The defendants argued the Associate Judge erred by refusing an adjournment, making the order without sufficient evidence, and appending an overly broad list of documents to the order.

The Superior Court dismissed the appeal, finding no error in the refusal of the adjournment, sufficient evidence to support the order, and that the order appropriately incorporated principles of relevance and proportionality under the Rules of Civil Procedure.

The bankrupt brought a motion to strike certain evidence filed by a creditor, Alpa Stairs and Railings Inc., in response to the bankrupt's motion to expunge Alpa's proof of claim.

The bankrupt sought to strike portions of an affidavit sworn by Alpa's representative, arguing it contained inadmissible hearsay, opinion, and argument, and relied on transcripts of examinations under s. 163 of the Bankruptcy and Insolvency Act of individuals who were not parties to the proceeding.

The court struck several paragraphs and exhibits from the affidavit that violated rules against hearsay and opinion evidence.

However, the court held that the s. 163 examination transcripts themselves were admissible evidence on the expungement motion under s. 163(3) of the BIA.

The appellants appealed an order directing funds paid into court to be released to the respondent, which were secured by a mortgage.

The Court of Appeal quashed the appeal for lack of jurisdiction, finding the order to be interlocutory rather than final.

The court reasoned that the order did not finally determine the substantive issues between the parties, such as claims of improvident realization or breach of duty, which remained subject to a separate, unscheduled application.

This endorsement addresses the costs following a four-day summary trial where judgment was granted in favour of the plaintiff for breach of lease damages and personal liability against one defendant.

The court applied Rule 57.01 of the Rules of Civil Procedure, considering factors such as the result, counsel experience, complexity, and the importance of issues.

The plaintiff was found substantially successful and awarded costs, calculated at a full indemnity rate for lease damages and a partial indemnity rate for personal liability issues, with a deduction for certain dismissed claims.

The court declined to apportion costs separately between the corporate and individual defendants, finding their interests and defence intertwined, and ordered costs payable jointly and severally.

Following a lengthy construction lien trial where the plaintiff recovered approximately $100,000 of a $250,000 claim, the plaintiff sought costs of over $239,000.

The court found that while the plaintiff was ultimately successful in obtaining a net judgment, the defendant was overwhelmingly successful on the central issue of charge-backs.

Applying principles of proportionality and considering the plaintiff's exaggerated lien claim and unreasonable litigation conduct, the court significantly reduced the plaintiff's costs, awarding a total of $87,226.43 inclusive of disbursements and HST.

The moving parties brought a motion for leave to appeal the order of Dietrich J. The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $5,000 to the responding party.

Following an order enforcing the plaintiff's mortgage against the proceeds of sale of a mortgaged property, the plaintiff sought costs of $33,342.15 on a substantial indemnity basis as provided in the mortgage.

The defendants argued the plaintiff was not entitled to costs for a prior motion to set aside a default judgment that was settled and deemed abandoned.

The court held that under Rule 37.09(3), the plaintiff was entitled to costs of the abandoned motion.

The court found the claimed costs were proportionate and reasonable, awarding the full amount sought.

The plaintiff mortgagee brought a motion for payment of funds held in court from the sale of the defendants' home.

The defendants opposed, arguing the plaintiff's claim merged in a default judgment, the mortgage was released by an agreement to take keys to a separate condominium, and the plaintiff breached duties as a mortgagee in possession.

The court rejected the defendants' arguments, finding no requirement for a monetary judgment before enforcing security, the alleged agreement could not bind the proceeds in court given a prior consent order, and claims of improvident realization were not properly before the court.

The motion was granted.

The defendant buyer in an aborted real estate transaction sought to have her case managed and tried together with six other similar actions involving the same developer.

The defendant raised environmental issues as a defence to the plaintiff's claim for damages.

The court dismissed the request for case management and a common trial, finding that a single 30-day trial would cause delay and that proceeding with a summary trial in the present action would be more efficient and could provide early rulings to streamline the other cases.

The appellants, a group of subcontractors and a bank, appealed an application judge's decision that rescission of surety bonds might be possible even if it affects innocent third parties.

The bonds were issued by Zurich Insurance Company Ltd. for a large construction project, but Zurich later discovered alleged fraudulent misrepresentations and collusion that induced it to issue the bonds.

The appellants sought a declaration that rescission was unavailable as a matter of law due to the involvement of innocent third parties.

The Court of Appeal dismissed the appeal, affirming that prejudice to third parties is not an absolute bar to rescission, especially in cases of fraudulent misrepresentation, and that such a determination requires a full factual record at trial.

The plaintiff subcontractor brought an action against the defendant general contractor to enforce a construction lien and for breach of contract regarding structural steel and miscellaneous metals work on a school project.

The court found that the parties had entered into two separate contracts.

The plaintiff failed to preserve its lien rights for the structural steel contract in a timely manner, but its claim was permitted to proceed as a personal judgment under section 63 of the Construction Lien Act.

The plaintiff's lien for the miscellaneous metals contract was validly preserved.

The court conducted a detailed accounting of the base contract prices, approved extras, and valid charge-backs for deficient or incomplete work performed by third parties.

Ultimately, the court awarded the plaintiff a net judgment of $99,346.83 across both contracts.

The plaintiff vendor brought a motion for summary judgment against the defendant purchaser for damages arising from a failed real estate transaction for a pre-construction home.

The defendant argued the property was subject to undisclosed environmental contamination and restrictions.

The court found no evidence of contamination and noted the defendant had a proxy sign the agreement and failed to exercise a solicitor review condition.

Summary judgment was granted for the plaintiff, awarding damages for the loss on resale and carrying costs, though a claim for interest was rejected.

Partial summary judgment was also granted dismissing the defendant's counterclaim against the plaintiff and its brokers.

The respondent mother brought a motion seeking to find the applicant father in breach of previous non-dissipation and disclosure orders, to impute his income for child support purposes, to summarily dismiss his spousal support claim, and to order reimbursement for post-separation household expenses.

The court found no breach of the previous orders.

The court declined to impute income, finding the father's reduced income from his restaurant business was due to pandemic-related closures and not intentional underemployment.

The court also refused to summarily dismiss the spousal support claim, finding genuine issues requiring a trial, and deferred the issue of household expenses to the trial judge.

The motion was dismissed in its entirety.

In two related actions arising from a construction dispute, the Concord Parties moved to stay the Varone Parties' breach of trust claims under the Construction Lien Act upon payment into court of the admitted claim amount.

The Varone Parties brought a cross-motion to withhold disclosure and production of certain documents until a threshold issue regarding the nature of the services agreement was determined.

The court granted the stay, finding that the trust claims would be moot once fully secured by the payment into court, and that a stay would result in material efficiencies without causing injustice.

The court dismissed the discovery motion, concluding that the threshold issue was not clearly severable from the other claims, including fraud and conspiracy, and that the Varone Parties would not suffer serious prejudice from full disclosure.

In a will challenge application, the parties brought cross-motions regarding the appointment of an Estate Trustee During Litigation (ETDL).

The applicants sought to appoint a professional trust company, while the respondent executor named in the impugned will sought to be appointed himself.

The court found that an ETDL was necessary and appointed the respondent executor, noting he had no beneficial interest in the estate, was neutral, and had already been managing the estate's assets.

The court dismissed the applicants' motion to appoint a limited partnership as ETDL, as it was not legally authorized to act in that capacity.

The court also granted directions for an accounting, production of medical records, and interim custody of certain chattels.

Zurich, the surety for the insolvent general contractor Bondfield, brought a motion to intervene as a party in a construction lien reference.

Zurich sought to participate in a vetting committee for the distribution of the owner's holdback among the timely lien claimants.

The court granted the motion, finding that Zurich had a direct interest in the holdback because it had made significant holdback advances to the major electrical and mechanical trades and had taken partial assignments of their lien rights.

The court ordered the timely claimants to pay Zurich's costs of $30,000.