Emilio Bisceglia

The applicant, 1605041 Ontario Limited (160), and the respondent, 2424033 Ontario Ltd. (242), were involved in a dispute concerning a property and a joint venture agreement. 160 sought to discharge 242's second mortgage, while 242 counter-applied for specific performance of its right of first refusal (RFR) to purchase the property and a determination of the mortgage amount owing.

The court found that 242 had a valid and enforceable RFR, which 160 had breached by attempting to sell the property to a third party without proper notice or honouring the RFR terms.

The court ordered specific performance, requiring 160 to transfer the property to 242 for $1,560,000.

The court also determined the amount required to discharge the second mortgage, disallowing several penalty fees claimed by 242 under the Interest Act, and denying 160's claimed set-offs for legal costs and first mortgagee default proceedings.

The joint venture agreement was terminated upon completion of the transfer.

The defendants brought a summary judgment motion to dismiss claims of unjust enrichment against the Da Costas and solicitor negligence against Allen P. Welman, and to argue that certain monetary claims were statute-barred.

The plaintiff, the Estate of Guido Barberio, alleged that the Da Costas took advantage of the deceased in a below-market value property transfer, aided by Mr. Welman's negligence.

The court dismissed the summary judgment motion, finding genuine issues requiring a trial, particularly concerning the credibility of witnesses, the nature of the relationship between the deceased and the Da Costas, the circumstances surrounding the property transfer, and the discoverability of the negligence claim against the solicitor.

The court emphasized that expanded fact-finding powers were inappropriate given the complex factual matrix and intertwined credibility issues, and that a full trial was necessary for a just resolution.

The plaintiffs, having succeeded in a 19-day trial and obtained judgment for $614,624 plus $30,000 in punitive damages, sought costs on a partial and substantial indemnity basis totaling $531,272.25.

The defendants argued the costs were excessive, particularly for motions resolved by consent and for alleged over-preparation.

The court, applying principles of reasonableness and the objectives of modern costs rules, reduced the partial indemnity costs for consent motions and the substantial indemnity costs for trial preparation, finding over-preparation.

The court awarded total costs of $353,109.53, including fees and disbursements.

The plaintiffs, V.P.M. Marketing and Media Consulting Inc. and Patricia Mitchell, sued the defendants, Stephen Jenne, Barbara Jenne, and BAMS Marketing Inc., for breach of contract, fiduciary duty, and interference with economic relations, seeking damages and punitive damages.

The defendants counterclaimed for unpaid commissions.

The court found Stephen Jenne to be a dependent contractor who owed and breached fiduciary duties and the duty of good faith to VPM by secretly orchestrating the transfer of VPM's clients to his own company, BAMS Marketing Inc., after the death of VPM's founder.

The court awarded the plaintiffs $614,624 in compensatory damages for lost profits and $30,000 in punitive damages.

The defendants' counterclaim was dismissed due to lack of proof, the application of the Limitations Act, and laches/acquiescence.

The plaintiffs brought a motion for leave to issue a certificate of pending litigation (CPL) against a property registered to one of the defendants, claiming the property was beneficially owned by another defendant who owed them money.

The plaintiffs also sought to amend their statement of claim and file supplementary affidavit evidence.

The court allowed the late affidavit and the amendment to the statement of claim.

However, the court dismissed the motion for a CPL, finding the plaintiffs failed to establish a triable issue regarding an interest in the land, as the funds advanced were merely an unsecured loan used to pay property expenses.

The plaintiff, a 70-year-old senior executive with 30 years of service, brought a motion for summary judgment for wrongful dismissal.

The court awarded a 24-month reasonable notice period based on the Bardal factors.

However, the court dismissed the plaintiff's claims for lost bonus during the notice period and a pro-rated bonus for the year of termination, finding that the bonus plan's language unambiguously excluded such payments upon termination.

The court ordered the employer to pay the balance of the notice period in monthly installments, subject to the plaintiff's continuing duty to mitigate.

The appellants, construction trades, appealed a Master's decision granting summary judgment dismissing their breach of trust actions against the respondents and refusing to lift bankruptcy stays.

The Divisional Court upheld the Master's finding that the appellants' breach of trust claims were discovered when they signed minutes of settlement in 2009, making their 2012 and 2013 actions statute-barred under the Limitations Act, 2002.

Consequently, there was no basis to lift the bankruptcy stays under s. 69.4 of the Bankruptcy and Insolvency Act.

The appeals were dismissed.

The plaintiff brought a motion for summary judgment seeking payment of over $5.1 million in outstanding invoices for bitumen supplied to the defendant.

The defendant argued the claim was partially statute-barred and that the parties had entered into a new agreement allowing the defendant to withhold payment to set off costs from alleged roadway deficiencies caused by the plaintiff's product.

The court found the claim was not statute-barred, as the limitation period began 30 days after the statement was delivered.

However, the court found a genuine issue requiring a trial regarding the existence of the new agreement and ordered a mini-trial on that issue.

The plaintiffs, property developers, brought a motion for leave to amend their statement of claim to add three new defendants and plead conspiracy and oppression regarding allegedly inflated billings for deficiency work.

The proposed defendants opposed the motion, arguing the claims were statute-barred under the Limitations Act, 2002.

The court granted the motion, finding the plaintiffs had exercised reasonable diligence in investigating the billing discrepancies and raised a triable issue regarding discoverability.

The court held that the proposed amendments disclosed a reasonable cause of action and would not cause undue prejudice.

The plaintiff, a self-represented lawyer, brought an action for wrongful termination of his independent contractor agreement with the defendant law firm.

The plaintiff filed an 87-page Fresh as Amended Statement of Claim containing 259 paragraphs.

The defendants brought a motion to strike the claim on the basis that it pleaded evidence rather than material facts, contained irrelevancies, and breached solicitor-client privilege by naming clients and detailing their files.

The court agreed, finding the claim read like an evidentiary diary and could not be repaired with a 'band-aid solution'.

The court struck the Statement of Claim in its entirety but granted the plaintiff leave to deliver a new Amended Statement of Claim.

The plaintiffs retained the defendant to install an HVAC system in their new home.

The system experienced significant problems immediately after installation in 2006.

Despite maintenance attempts, the problems persisted, and by late 2009, the plaintiffs were consulting other service providers who advised the system was improperly installed.

The plaintiffs commenced an action for damages in February 2012.

The defendant brought a motion for summary judgment to dismiss the action as statute-barred.

The court granted the motion, finding the plaintiffs discovered their claim well before February 2010, as they knew the system was defective and were no longer relying on the defendant's good faith efforts to remedy the issues.

Following the dismissal of the plaintiffs' motions to lift bankruptcy stays and the granting of summary judgment dismissing the actions against the defendants, the court determined the appropriate costs award.

The defendants sought over $166,000 in costs.

The court awarded partial indemnity costs of $126,124.12, apportioning the liability among the three plaintiffs based on the proportionate size of their respective claims, finding that the summary judgment motions effectively disposed of the entire actions.

The plaintiffs, unpaid trades on a condominium construction project, brought motions to lift the statutory stays of proceedings under the Bankruptcy and Insolvency Act to pursue breach of trust claims under the Construction Lien Act against the individual directors of the insolvent developer.

The defendants cross-moved for summary judgment.

The court dismissed the motions to lift the stays, finding that the plaintiffs had previously settled their claims in exchange for a 'Trades Mortgage', the limitation period had expired, and there was no evidence of misappropriation or defalcation that would allow the claims to survive bankruptcy.

The actions against one of the directors were summarily dismissed.

The Bank of Nova Scotia Trust Company, as Estate Trustee for Lidia Iaboni, brought an application to pass accounts.

Carlo Iaboni filed a Notice of Objection, alleging exclusion of assets, wealth evaporation, and conflict of interest.

His siblings, Norma Moretto and Ferdinando Iaboni, moved to strike the Notice of Objection, arguing the grounds were without merit, time-barred, and an abuse of process, given prior litigation.

The court found Carlo Iaboni's objections lacked substance, were largely time-barred, and constituted an abuse of process, particularly as he failed to comply with prior settlement minutes and allowed a previous civil action raising similar issues to be dismissed for delay.

The court dismissed Carlo Iaboni's objections and struck his Notice of Objection.

The plaintiff brought a motion for summary judgment against the defendants for breach of fiduciary duty and misrepresentation related to a failed real estate development project.

The plaintiff sought rescission of the contract and recovery of his $500,000 investment.

The defendants argued that the claims were statute-barred by the Limitations Act, 2002, and raised genuine issues regarding the existence of a fiduciary duty, the cause of the project's failure, and the calculation of damages.

The court dismissed the motion for summary judgment, finding that there were multiple genuine issues requiring a trial, including the nature of the relationship between the parties, the state of the defendants' knowledge, and the limitation period.

Following the successful dismissal of a motion to approve a settlement agreement in CCAA proceedings, the successful lien claimants sought costs against the applicants, Tarion, and the applicants' shareholder.

The court declined to award costs against Tarion because the lien claimants failed to provide adequate prior notice of their intention to seek costs against it.

However, the court awarded costs against the applicants' estate, reasoning that the estate and its creditors benefited from the lien claimants' successful opposition, which preserved security funds.

Costs were fixed at $35,000 total on a partial indemnity basis, payable only to the extent the applicants actually receive the benefit of the security.

The 74-year-old plaintiff brought a wrongful dismissal action after 31 years of service with the defendant construction company.

The defendant claimed the plaintiff had voluntarily retired in 2010 and was only working on an as-needed basis.

The court found no evidence of retirement and concluded the plaintiff was terminated without cause in October 2012.

Applying the Bardal factors, the court awarded 20 months' pay in lieu of notice, finding the plaintiff was not required to mitigate by accepting a demeaning demotion to a flagman position.

Following the dismissal of the plaintiff's motion to amend its Statement of Claim, the successful defendant sought costs on a substantial indemnity basis relying on a provision in a construction bond.

The court declined to award substantial indemnity costs, finding it unduly onerous and noting that only one of the three proposed amendments related to the enforcement of the bond.

Applying the principle of proportionality and the factors under Rule 57.01, the court fixed costs on a partial indemnity basis at $12,000.

Ozz Electric Inc., a subcontractor, brought a motion to amend its Statement of Claim to advance various claims against the project owner, The Corporation of the City of Kitchener.

The proposed amendments included claims that the City was liable under a Labour and Material Payment Bond, liable in negligence for economic loss due to project delays, and liable for contribution and indemnity for alleged deficient workmanship.

The court dismissed all proposed amendments, finding no legal basis for the City's liability under the bond, that the negligence claim for economic loss was insufficiently pleaded, and that the claim for contribution and indemnity lacked a tenable legal basis.

The motion was dismissed without prejudice to Ozz Electric Inc. to bring a further motion to amend the negligence claim with proper pleading.

The plaintiff, a facilities manager with 15 years of service, sued for wrongful dismissal after being placed on a temporary layoff.

He brought a motion for summary judgment, arguing the layoff constituted constructive dismissal.

The court found that the unilateral layoff, absent a contractual term, was indeed a constructive dismissal.

However, the court also found that the plaintiff failed to mitigate his damages by refusing a genuine offer of reinstatement to his exact same position and by not making reasonable efforts to find alternative employment.

Consequently, the plaintiff's damages were limited to three months' salary in lieu of notice, corresponding to the period he would have been out of work had he accepted the reinstatement offer.