Enzo Di Iorio

This decision concerns cross-applications to set aside or enforce two arbitral decisions relating to a commercial property dispute between the Moscone Parties and Edenrock Holdings Inc. and Anthony Marrese.

The Moscone Parties sought to set aside or appeal the arbitral decisions on grounds of procedural unfairness, natural justice, and bias, or in the alternative, to remit the matter to a new arbitrator.

The court dismissed the Moscone Parties’ application, finding no breach of natural justice or procedural fairness, no reasonable apprehension of bias, and that the arbitration agreement precluded any right of appeal.

The application by Edenrock and Marrese to enforce the arbitral decisions was granted.

This case involved a family dispute over a corporation and real estate.

The applicants sought validation of a shareholder meeting and a declaration of beneficial ownership of a property.

The respondents cross-applied, disputing the applicants' shareholder status.

The court found in favour of the applicants, confirming their shareholder status, validating the meeting, and declaring them beneficial owners of the property.

This is a costs endorsement following the dismissal of the defendants' motion for summary judgment.

The plaintiffs, as the successful parties, sought costs on a partial indemnity scale.

The defendants argued their motion was reasonably brought and narrowed issues, and that the requested costs were excessive.

The court awarded costs to the plaintiffs, fixing fees at $41,049 and disbursements at $792.40, totaling $47,280.78 including HST, to be paid within 30 days.

The court applied a 60% partial indemnity rate, considering the significance and complexity of the underlying motion.

The defendants moved for summary judgment to dismiss the plaintiffs' action concerning a share purchase agreement for a commercial property.

The core issue was whether the defendant vendor used "best efforts" to satisfy a condition precedent requiring all litigation affecting the property to be resolved by the closing date.

The plaintiffs sought specific performance, arguing the condition was not met due to the defendant's breach.

The court found a genuine issue requiring a trial regarding the defendant's best efforts, dismissing the summary judgment motion.

The court also declined to discharge the plaintiffs' certificate of pending litigation or set aside an interlocutory injunction, and refused partial summary judgment on the defendants' counterclaim for unpaid rent due to intertwined factual issues.

The applicant sought an order to discharge a mortgage, arguing that the underlying debt had been paid in full.

The respondents contended that an oral agreement existed for the mortgage to be assigned and held as security for the applicant's performance of other contractual obligations.

The court dismissed the application, finding that the transfer of charge to the respondent occurred *before* the final payment to the original mortgagee, meaning the assigned mortgage was not a nil-balance mortgage.

The court determined that the remaining issues, involving the interpretation of an agreement of purchase and sale and a disputed oral agreement, were not suitable for resolution by application under Rule 14.05(3)(e) and (f) or s. 12(8) of the Mortgages Act, and should proceed by way of statement of claim.

A request for a Certificate of Pending Litigation was also dismissed as the title to the land was not in dispute in the application.

On an adjournment appearance following a prior order, the court was asked to resolve two disputed terms of a draft order pending the return of a motion.

The first issue concerned whether defendants could withdraw $500 each or $500 in total per week for living expenses from a corporate bank account subject to court supervision.

The court interpreted the prior order and determined the permitted withdrawal was $500 per week in total for the named individuals.

The second issue concerned a proposed requirement that certain defendants produce monthly bank account statements; the court ordered that provision deleted pending further proceedings.

Costs of the attendance were reserved to the judge hearing the motion on the return date.

Shareholder plaintiffs brought a motion seeking injunctive relief to preserve proceeds from the sale of corporate property pending determination of their claim to the funds.

The defendants requested an adjournment to permit cross-examinations on affidavits and argued that funds remaining in the corporation’s bank account were sufficient to satisfy the claim.

The court granted the adjournment but imposed protective terms requiring the shareholder defendants to repay missing proceeds into the corporate account and prohibiting any withdrawal or dissipation of the full proceeds pending the motion’s return.

The court also ordered that the corporation’s business affairs remain at status quo and that no corporate actions be taken without unanimous shareholder consent or further court order.

The defendants moved for leave to appeal an interlocutory order that fixed costs at $5,000 and set aside stays of the action.

The defendants argued the motion was never argued and costs should not have been awarded.

The Divisional Court dismissed the motion for leave to appeal, finding that the award of costs is discretionary and there was no good reason to doubt the correctness of the decision.

Furthermore, the court held that the matter was not of sufficient importance to warrant an appeal to the Divisional Court.

The appellant commenced a fraudulent conveyance action against the respondent, which was stayed when the respondent filed for bankruptcy.

The appellant later obtained an order under s. 38 of the Bankruptcy and Insolvency Act to bring proceedings in its own name.

The motion judge dismissed the action as statute-barred, finding that the trustee's discoverability date governed.

The Court of Appeal allowed the appeal, holding that under s. 12(1) of the Limitations Act, 2002, the relevant discoverability date is the earlier of the trustee's or the creditor's.

Since the creditor discovered the claim before the new Limitations Act came into force, no limitation period applied.

The respondents sought costs for two appeals following the release of the court's reasons.

For the first appeal, the court declined to award costs, agreeing with the appellants that their partial success on appeal warranted an offset against the significant unadjusted costs awarded in the court below.

For the second appeal, where the respondents were entirely successful, the court awarded costs fixed at $7,500, noting the appeal was straightforward and took little time.

The appellants appealed a trial judgment finding them liable for fraud, conspiracy, and breach of fiduciary duty in several real estate transactions with the Ontario Realty Corporation.

The Court of Appeal upheld the trial judge's findings on most transactions, including orders for disgorgement of profits based on knowing receipt and conspiracy with a fiduciary.

However, the Court allowed the appeal regarding the King's Highway 2A property, finding no basis for disgorgement where no fiduciary breach or damages were proven.

The respondents' cross-appeal was allowed in part, holding a former employee jointly and severally liable for a $300,000 improper price abatement.

The appellant appealed a finding of civil fraud.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings were supported by the evidence and not tainted by palpable and overriding error.

The court noted that although the respondent did not prove one particular of fraud (participation in a fraudulent discharge), the other proven particulars supported the judgment.

In a divorce proceeding, the husband's answer was struck out under Rule 14(23) of the Family Law Rules for failing to obey three prior court orders requiring him to pay the wife $54,500.

The husband appealed, arguing that the wife's ability to withdraw funds from a joint mutual fund constituted compliance.

The Court of Appeal rejected this argument and found no error in the motion judge's exercise of discretion.

However, noting that the answer included custody and access issues, the Court ordered that if the husband fully satisfied the orders by October 28, 2005, his answer regarding custody and access only would be revived.

The appeal was otherwise dismissed.

The appellants appealed a motion judge's order enforcing a settlement agreement for the purchase of shares for $275,000.

The Court of Appeal upheld the finding that the settlement was not contingent on a corporate reorganization and that payment was due within a reasonable time.

However, the Court allowed the appeal in part, finding that the motion judge erred in ordering an additional payment for tax consequences, as the $275,000 was inclusive of taxes.

The Court also reduced the motion costs from substantial to partial indemnity, finding that a letter sent by the respondent did not constitute a Rule 49 offer.

The appellants, who were self-represented at trial, appealed the trial judgment on the grounds that the trial judge failed to grant an adjournment to retain counsel and failed to warn them that evidence from the counsel table was inadmissible.

The Court of Appeal rejected both arguments, noting the appellants never requested an adjournment and the trial judge repeatedly warned them about giving evidence from the witness box.

The court also upheld the trial judge's findings regarding the payables for a group of bridal gowns and dismissed a motion to admit fresh evidence.

The appeal was dismissed with costs fixed at $2,500.

Following an appeal, the Court of Appeal for Ontario issued an endorsement regarding costs.

The court fixed the costs of the appeal at $3,500, inclusive of GST and disbursements, payable to the respondent.

The appellant appealed a trial judgment finding that his employer had just cause to terminate his employment.

The appellant had taken a lengthy vacation with no notice and without arranging a replacement, despite a clear warning not to do so.

The appellant argued that the employer condoned his misconduct by initially providing termination letters citing restructuring and offering severance pay.

The Court of Appeal dismissed the appeal, holding that the trial judge properly assessed the breakdown of the employment relationship and that the employer's initial generosity and lack of resolve did not amount to an intention to condone the misconduct.