James F. Diamond

The defendant moved to set aside a default judgment for $117,383.19, which also declared a property transfer void under the Fraudulent Conveyances Act.

The court applied the five-factor test for setting aside default judgments.

While the defendant's promptness in bringing the motion and explanation for default were found to be weak, the court determined that the defendant presented an arguable defence with an "air of reality" regarding the conspiracy and fraudulent conveyance claims.

Specifically, the court noted the difficulty in establishing joint and several liability for the underlying debt based solely on a fraudulent conveyance and the non-monetary nature of remedies under the Fraudulent Conveyances Act.

The motion was granted on terms, including a restriction on dealing with a specific property and an order for costs thrown away.

The plaintiff initiated an action seeking a declaration that the paid-up values in his life insurance policy, which significantly exceeded the face value, were correct and reflected an agreed-upon inflation protection.

The defendant, Manulife, contended that the policy's non-forfeiture table contained a clerical error, mistakenly stating "per $1,000" instead of "per $5,000" of face amount, and sought rectification.

The court found that the plaintiff never requested inflation protection, and the error in the policy was mutual and obvious.

The plaintiff's action was dismissed, and the court ordered the policy to be rectified to reflect the true agreement, changing "per $1,000" to "per $5,000" in the non-forfeiture table.

This costs endorsement addresses two motions: the plaintiffs' successful motion for leave to file an affidavit and their unsuccessful motion for interim recovery of personal property.

The court found mixed success, noting that the plaintiffs were prima facie entitled to costs for the leave motion and the defendant for the recovery motion, both on a partial indemnity basis.

However, due to the mixed outcome and overreaching costs claims by both parties, the court ultimately ordered that each party bear their own costs for both motions.

The Ministry of Transportation (MTO) and Brennan Paving & Construction Ltd. (Brennan) brought joint motions for summary judgment to dismiss a Third Party Claim and Fourth Party Claim.

The defendant in the main action had initiated a Third Party Claim against MTO, alleging negligence due to dust and debris on Highway 401 contributing to a motor vehicle accident.

MTO, in turn, issued a Fourth Party Claim against Brennan.

The court granted summary judgment, finding no credible evidence to support the defendant's allegations of dust or debris on the highway.

The defendant's testimony was deemed self-serving and uncorroborated by independent witnesses or official reports.

The court emphasized the proportionality principle in summary judgment and the respondent's obligation to present all available evidence to demonstrate a genuine issue for trial.

This endorsement addresses several motions in a contentious family dispute involving co-owned property and personal belongings.

The parties are sisters and their family members.

The plaintiffs brought motions for a receiver, to strike affidavits, to stay a counterclaim, for leave to file a new affidavit (Martin affidavit), and for interim recovery of personal property (a piano and sheet music).

The court granted the leave motion, finding the new affidavit responsive to a matter raised on cross-examination regarding the admissibility of bail affidavits.

For the recovery motion, the court granted the recovery of sheet music but dismissed the recovery of the piano, finding that the plaintiffs did not meet the high threshold of showing substantial grounds for ownership, as credibility issues were best left for trial.

The parties agreed to continue efforts to sell the co-owned property and the court provided directions for this process.

This case conference endorsement addresses interim steps leading up to a mini-trial.

The court ordered the plaintiff to review un-redacted files for communications predating the statement of claim that relate to the decision to commence the proceeding, and to advise the defendants of their existence and nature.

The mini-trial was scheduled for September 1, 2016, with witness examinations in chief to be tendered by affidavit evidence, followed by cross-examination at the mini-trial.

The plaintiff, Roy Fillmore, was terminated from his employment after 19 years and 3 months and commenced an action for wrongful dismissal.

Both parties agreed to proceed by way of a motion for summary judgment to determine two issues: the amount of common law reasonable notice and whether the plaintiff's damages should be reduced due to an alleged failure to mitigate.

The court determined a reasonable notice period of 17 months.

It also found that the plaintiff did not fail to mitigate by refusing a demotion to a lower-paying, permanent position with the same employer, as this was not an offer to work through the notice period and could have prejudiced his rights.

This costs endorsement followed a plaintiff's motion to amend her Statement of Claim at the outset of trial, which resulted in an adjournment.

The defendants sought substantial indemnity costs for costs thrown away and for the motion to amend.

The court considered the principles for compensatory cost awards on motions to amend, rejecting the plaintiff's arguments regarding prematurity, unsupported impecuniosity, and alleged inequitable conduct by the defendants.

While finding no substantive grounds to deny costs, the court adjusted the defendants' requested amounts due to identified duplication of effort and time not truly "thrown away," ultimately awarding the defendants $22,500.00 on a substantial indemnity basis for costs thrown away and $1,500.00 on a partial indemnity basis for the motion to amend.

The court determined costs for several motions following a previous endorsement.

Filomena Siggillino was ordered to pay costs for an abandoned motion.

Filomena, Teresa Scalamogna, and Lilianna Siggillino were ordered to pay costs for a successful Vesting Order motion brought by 2377544 Ontario Inc. and an unsuccessful Certificate of Pending Litigation (CPL) motion brought by Filomena.

The court awarded costs on a partial indemnity basis, rejecting the request for substantial indemnity, and adjusted the claimed amounts based on the complexity of the proceedings, the results achieved, and the clarity of the costs submissions.

Following a motion to strike where the defendant achieved partial success, the parties made written submissions on costs.

The defendant sought $10,000 on a partial indemnity basis, while the plaintiff argued for $5,000 or no costs due to mixed success.

The court found that success was not divided, as the plaintiff's position had morphed and required further particulars.

The court awarded the defendant $8,000 in costs.

During the trial, the plaintiff brought a motion for leave to amend her Statement of Claim after the trial judge noted her pleadings contained irreconcilable theories regarding her interest in two corporations.

The plaintiff sought to amend her claim to assert unjust enrichment and constructive trust arising from a joint family venture with the individual defendant, while abandoning claims of legal ownership.

The court granted leave to amend the pleadings to advance the unjust enrichment and constructive trust claims, finding that such claims may not have vested in her trustee in bankruptcy if they crystallized after her discharge.

However, the court denied leave to amend claims asserting legal or beneficial ownership, as those would have vested in the trustee upon her voluntary assignment in bankruptcy.

The defendant, The Personal Insurance Company of Canada, sought to have the same judge who granted its initial summary judgment motion hear a subsequent 'further motion' to dismiss the balance of the plaintiff's action.

The plaintiff opposed this request, arguing the relief was inappropriate for summary judgment and citing concerns about the judge's prior favourable ruling.

The court, referencing Hryniak v. Mauldin, declined to seize itself of the further motion, clarifying that the obligation to craft a trial process arises when summary judgment motions are dismissed, not granted.

However, the court offered to case manage the interim issues related to the second motion.

Following a summary judgment motion in a wrongful dismissal action, the plaintiff sought costs of $13,418.32, including a substantial indemnity portion based on an offer to settle.

The court found Rule 49.10 did not apply as the offer was served on the morning of the hearing.

Considering the mixed success on issues, unnecessary cross-examinations, and the factors under Rule 57.01, the court awarded the plaintiff partial indemnity costs fixed at $7,250.

This endorsement addresses the costs of a prior motion where the defendants were partially successful in striking out "campaign of defamation" allegations from the plaintiffs' Amended Statement of Claim, while the plaintiffs successfully opposed striking out pleas of malice.

The defendants sought $15,000 in partial indemnity costs.

The court, applying Rule 57.01 and considering the "fair and reasonable" principle, found that despite divided success, the "campaign of defamation" allegations were a principal issue where the defendants' position was validated.

The court awarded the defendants $11,500 in all-inclusive costs, payable by the plaintiffs.

The court issued a costs endorsement following a previous decision that dismissed part of the applicant's application and converted the balance into an action.

The respondent sought 83% of its partial indemnity costs, arguing it was substantially successful on the dismissed issue.

The applicant argued costs should be reserved to the trial judge.

The court awarded the respondent $65,000 in costs for the dismissed issue, finding the applicant's changing case theory unnecessarily increased costs, and reserved the remaining costs to the trial judge.

This endorsement addresses two motions within related legal proceedings concerning a "family feud" over a property.

Robert Di Toro, on behalf of 2377544 Ontario Inc., sought a vesting order to facilitate the sale of a property, with $1,500,000.00 to be paid into court as previously ordered by Master Short.

Filomena Siggillino, the mother of the other parties, brought a cross-motion for leave to register her own Certificate of Pending Litigation (CPL) against the property, alleging fraudulent misuse of a Power of Attorney by her daughters, Teresa Scalamogna and Lilianna Siggillino.

The court dismissed Filomena's cross-motion for a CPL, finding no tenable cause of action against Robert/2377544 Ontario Inc. and that damages would be an appropriate remedy.

The court also noted the disingenuous position of Teresa and Lilianna in supporting their mother's motion, which undermined their own prior claims, constituting an abuse of process.

Consequently, the court granted the vesting order sought by 2377544 Ontario Inc., allowing the property sale to proceed with the specified funds paid into court.

The defendant brought a motion seeking a declaration that the parties had a binding settlement agreement, including a mutual release covering all claims, even those not pleaded, specifically regarding a property in Bulgaria.

The plaintiffs argued the release was limited to claims within the litigation.

The court dismissed the defendant's motion, holding that the phrase 'and otherwise' in the Minutes of Settlement did not extend to unpleaded claims, particularly those not previously raised, without more precise language.

The court emphasized that a general release requires specific wording to cover unknown claims and that it lacked jurisdiction to rewrite the settlement terms.

The defendants moved for summary judgment to dismiss the plaintiff's subrogated action, arguing it was statute-barred under the Limitations Act, 2002, having been commenced more than two years after a fire and explosion.

The plaintiff, through its insurer Intact, contended that the claim was not discovered until the Ontario Fire Marshal's report identified the cause as arson.

The court found Intact's evidence regarding its due diligence in investigating the claim to be significantly lacking, relying on hearsay.

Despite the evidentiary deficiencies, the court, applying the enhanced powers under Rule 20, ordered a mini-trial to determine the issue of Intact's reasonable diligence in discovering the claim, emphasizing the need for a fair and just adjudication and the unique circumstances of pending official investigations.

The plaintiff's action for $3.13 million in damages for "humiliation" and "aggravation" arising from debt collection efforts was dismissed as frivolous, vexatious, and an abuse of process under Rule 2.1.01 of the Rules of Civil Procedure.

The court had previously stayed the proceeding pending a response from the plaintiff regarding the contemplated dismissal, but no response was received.

The alleged misconduct related to a debt already subject to a previously dismissed proceeding, reinforcing the court's finding of abuse of process.

The defendant, National Bank of Canada, brought a motion to strike portions of the plaintiff's Amended Fresh as Amended Statement of Claim, specifically claims for intentional interference with economic relations and breach of the duty of good faith.

The court granted the motion to strike the claim for intentional interference with economic relations, but with leave to amend, finding the plaintiff failed to plead an unlawful act actionable by a third party.

The court dismissed the motion to strike the claim for breach of the duty of good faith, finding it was not plain and obvious that it could not succeed, but ordered the plaintiff to provide further particulars.