Eric O. Gionet

This endorsement addresses the costs of an unsuccessful motion for summary judgment brought by the Plaintiffs against the Defendant David Ryan.

The Defendant sought partial indemnity costs of over $100,000.

The Plaintiffs argued for costs to be reserved to the trial judge or fixed at $25,000, asserting that much of the work done for the motion would be reusable at trial.

The court found that the Plaintiffs should have realized the case was not suitable for summary judgment and that a significant portion of the work would not be reusable.

The court awarded the Defendant $60,000 in all-inclusive costs, payable within 30 days, but reserved the issue of expert report disbursements to the trial judge, acknowledging their potential reusability.

The plaintiffs, J.M.L. Holding Corporation and Gary Muchula, sought summary judgment against their former real estate solicitor, David Ryan, alleging professional negligence.

They claimed Mr. Ryan's conduct led to the erroneous sale of a waterfront property they did not intend to sell, seeking $550,000 in damages.

The court dismissed the motion, finding that the case presented genuine issues requiring a trial, including significant credibility and reliability issues between the parties, conflicting expert opinions on the standard of care and damages, and an incomplete evidentiary record, particularly regarding the buyer's perspective and the plaintiffs' intentions for the property.

The appellant appealed the dismissal of her motion for leave to amend her statement of claim seeking Long-Term Disability (LTD) benefits and damages.

The motion judge denied leave, finding the proposed amendments sought to withdraw an admission regarding the timely filing of an LTD benefits application and to add a statute-barred request for relief from forfeiture.

The Court of Appeal found the motion judge erred in concluding the amendments withdrew a factual admission, clarifying that the appellant's factual admission remained, and the amendments merely provided particulars and sought an alternative legal conclusion (relief from forfeiture) arising from the same facts.

The Court also held that the request for relief from forfeiture was not a new, statute-barred claim.

The appeal was allowed, and leave to amend was granted.

The appellant, a mortgagee, appealed a motion judge's decision that granted priority to construction lien claimants over his registered third mortgage.

The Court of Appeal dismissed the appeal, affirming that the advances made by the mortgagee did not fall within the exceptions of s. 78(2) or s. 78(6) of the Construction Act.

The court held that advances must be "made in respect of" the mortgage and the intention to secure financing must operate prospectively to gain priority over liens.

The decision reinforces the general principle of priority for lien claimants and the onus on mortgagees to clearly fall within statutory exceptions.

This motion, initiated by the Receiver, determined competing priorities under s.78 of the Construction Act between construction lien claimants (represented by Maxion Management Services Inc.) and a third-ranking mortgage held by Donald Dal Bianco.

The court found that Dal Bianco's mortgage, registered after the first lien arose and securing funds advanced between 2012 and 2015, did not qualify for priority as a "subsequent mortgage" under s.78(6) because the advances were not made "in respect of that mortgage." Furthermore, it was not a "building mortgage" under s.78(2) as it did not involve an intention to secure future financing.

The court emphasized the general priority of lien claimants and the mortgagee's burden to prove exceptions.

Consequently, the lien claimants were granted priority over the third mortgage.

The plaintiffs brought a motion to strike the statement of defence and for judgment, which they subsequently abandoned.

The defendants sought costs of $14,515.08 on a partial indemnity basis for the abandoned motion.

The court fixed the defendants' costs at $7,500 inclusive of HST and disbursements, noting that while the motion was not argued, the defendants' counsel had prepared materials and travelled for the hearing.

The court ordered that the costs not be payable until the conclusion of the action, as they may be deducted from any amounts found owing to the plaintiffs.

The plaintiff, a third-generation owner of a funeral home, sold his shares to the defendant and entered into a 10-year Transitional Consulting Services Agreement (TCSA).

Unhappy differences arose, leading the plaintiff to go on medical leave and claim constructive dismissal.

The court found the defendant's course of conduct, including improper termination of vehicle use, tracking hours, non-payment of commissions, removal of a photograph, and changing locks, amounted to constructive dismissal.

The plaintiff's claims for intentional infliction of mental suffering and discrimination under the Human Rights Code were dismissed.

Damages were awarded for lost salary, vehicle expenses, benefits, golf membership, and commissions.

The appellants appealed from an order granting the respondent's application for a warrant to remove signs placed on trailers bordering Highway 400.

The signs violated the Public Transportation and Highway Improvement Act as they were within 400 metres of the highway.

The appellants challenged the application on grounds that the respondent cited incorrect subsections of the Act and that the authorization to remove the signs was deficient in not specifying which signs were subject to removal.

The Court of Appeal upheld the application judge's decision, finding that the erroneous subsection reference was a mere irregularity that did not vitiate the authority of the direction, and that the deficiency in the authorization could be remedied by issuing a supplementary authorization.

The appellants' cross-application for a declaration that the signs were permitted was dismissed as it confused the respondent's sign policy with the general prohibition under the Act.

Northridge Homes Ltd. sought costs after successfully vacating an improper court order that had discharged construction liens based on a sham financial guarantee bond.

The defendants (Motel and Grewals) did not dispute Northridge's entitlement to costs but challenged the quantum.

The defendants also brought a motion under Rule 57.07(1)(b) of the Rules of Civil Procedure to have their former counsel, Wilford Professional Corporation, held responsible for any costs awarded against them.

The court awarded Northridge $9,000 in all-inclusive costs, reduced from the requested amount due to delay and lack of settlement efforts.

The court further found that Wilford Professional Corporation, through default in ensuring the bond's validity, caused the costs to be incurred without reasonable cause and ordered them to reimburse the defendants for the $9,000.

The Minister of Transportation (MTO) applied for a warrant to remove trailer signage located within 400 meters of Highway 400, arguing it violated the Public Transportation and Highway Improvement Act and the MTO Corridor Signage Policy.

The respondents, including 2523654 Ontario Inc. (252), opposed the removal and brought a counter-application for a declaration that the signage was not prohibited.

The court found that the trailer signage constituted billboard signage not related to the property, thus contravening the Act and Policy.

The court also determined that legal opposition constituted "resistance or opposition" under the Act, justifying the warrant.

MTO's application was granted, and 252's counter-application was dismissed.

The plaintiff, Planet Paper Box Group Inc., sought to extend an ex parte interim injunction against its former sales representative, Mary McEwan, to restrain her from contacting customers and using confidential information.

The court dismissed the plaintiff's motion, finding that the initial ex parte motion was not urgent and that the plaintiff failed to make full and fair disclosure of material facts, particularly regarding the source of its information and the defendant's actual employer.

The court also ruled that the affidavit evidence based on information and belief was inadmissible due to the lack of specified sources, thereby eroding the evidentiary basis for the injunction.

The appellant appealed a trial judgment that declared the respondents had a right of way "in, over, and upon" a portion of the appellant's property, including the right to maintain drainage infrastructure (a catch basin and lateral pipe).

The appellant, who was self-represented at trial, argued the trial judge erred by failing to provide adequate assistance and by improperly interpreting the scope of the easement.

The Court of Appeal upheld the trial judgment, finding no procedural unfairness and that the drainage infrastructure constituted an ancillary right reasonably necessary to the use and enjoyment of the right of way.

The defendant counterclaimed against the plaintiff for $6,097.25 for unpaid invoices.

Neither party led any evidence or made any submissions regarding the counterclaim during the trial.

As a result, the court issued supplementary reasons dismissing the counterclaim.

The plaintiff general contractor sued the defendant flooring subcontractor for breach of contract after the installed resilient flooring exhibited loose, lifting, and telegraphing tiles.

The plaintiff replaced the defective flooring and sought to recover the costs.

The defendant argued the issues were caused by excess moisture in the concrete slab, for which it had obtained a liability release.

The court found that the defendant failed to properly prepare the concrete substrate in accordance with the contract specifications, causing the delamination and telegraphing.

The plaintiff was awarded the replacement costs, less the amount claimed for profit.

This decision concerns the costs arising from a dispute between a daughter and son-in-law (Palmieris) and the father (Alaimo) over a house built on Alaimo's property.

The parties initially agreed to arbitration, but Alaimo subsequently challenged the arbitration agreement and award, necessitating two applications before the court.

The Palmieris were successful in enforcing the arbitration award and defending Alaimo's challenges.

The court considered Alaimo's conduct, which unnecessarily lengthened the proceedings and involved advancing meritless positions, including an opportunistic allegation of bias against the arbitrator and unfounded claims regarding the arbitration agreement's payment terms.

Applying Rule 57.01(e) and (f)(i) and principles from Boucher v. Public Accountants, the court awarded the Palmieris $57,800 in all-inclusive costs.

The applicants sought to enforce an arbitration award requiring the respondent to pay a sum determined by a mathematical calculation based on the dwelling's fair cost and a mortgage amount.

The respondent argued a trial was necessary to address issues like the mortgage amount, alleged fraud, and unconscionability.

The court found that the arbitration agreement clearly outlined the payment mechanism and the arbitrator's limited role.

It determined that the "forensic machinery of a trial" was not required, as the contractual issue could be resolved by reviewing the existing evidence.

The court enforced the award, ordering the respondent to pay the calculated difference and arbitration costs.

Following trial reasons awarding the plaintiff sixteen months’ notice damages for wrongful dismissal, the court considered post‑trial submissions regarding whether “other commissions” should be included in the damages calculation for the notice period.

The original decision calculated damages based on commissions the plaintiff would have earned from October 2009 to January 2011.

The judge noted that the evidentiary record did not recall proof of additional commissions payable during that period.

The court indicated willingness to receive further submissions if evidence existed establishing entitlement to additional commissions within the notice period.

The plaintiff, a highly successful salesman who managed a lucrative drill rig production account, agreed to a temporary layoff during an economic downturn.

Upon his recall, the defendant employer offered him a vague sales position that excluded the lucrative drill rig account, fundamentally altering his duties and compensation.

The court found the plaintiff was constructively dismissed and was not required to mitigate his damages by accepting the ill-defined new role.

The plaintiff was awarded 16 months' pay in lieu of notice.