J. Lo Faso

The plaintiff advanced funds to his common-law stepson to purchase a property.

A dispute arose over the terms of the oral loan agreement and whether the plaintiff was intended to have a mortgage.

The plaintiff moved for a certificate of pending litigation (CPL), and the defendant moved to amend his statement of defence and to remove a notice registered by the plaintiff under the Land Titles Act.

The court granted the defendant leave to amend, finding no breach of settlement privilege.

The court dismissed the plaintiff's motion for a CPL, finding that while there was a triable issue regarding an equitable mortgage, the equities favoured the defendant.

The court also ordered the removal of the plaintiff's registered notice.

The applicant sought to schedule a date for the hearing of an Application claiming $120,000 in damages for repair costs to trucks and loss of income.

The applicant argued the matter could proceed under Rule 14.05(3)(h) as there were unlikely to be material facts in dispute.

The court declined to schedule the Application, holding that a proceeding to recover damages arising out of negligence or breach of contract should be brought by Action, not Application.

The defendants brought a motion to remove the plaintiffs' law firm of record, arguing a conflict of interest because lawyers from the firm acted on the underlying mortgage transaction and would likely be called as witnesses at trial.

The court applied the factors from Essa (Township) v. Guergis and found that the late stage of the proceedings, the delay in bringing the motion, and the plaintiffs' undertaking not to cross-examine the lawyers mitigated the risks.

The motion to remove counsel was dismissed.

Following a previous ruling referring their dispute over a failed new home purchase to arbitration, the parties were unable to agree on an arbitrator.

The moving parties brought a motion in writing to have the court appoint their preferred candidate, Mr. Richler, citing his lower fees and capped costs.

The responding party failed to respond to the motion.

The court exercised its power under section 10 of the Arbitration Act to appoint Mr. Richler, conditional on his continued willingness to accept the appointment.

Following a successful motion setting aside a prior contempt order, the applicant sought full recovery costs of approximately $12,959.66.

The respondent argued that no costs should be awarded because the matter concerned setting aside a contempt finding and the respondent was required to attend to assist the court, or alternatively that the bill was disproportionate.

The court held that the applicant was completely successful and that the respondent could have consented or taken a non-opposition position to avoid the hearing.

Applying modern costs principles emphasizing partial indemnification, encouragement of settlement, and discouragement of unnecessary litigation, the court found full indemnity costs unwarranted but awarded partial costs.

Costs of $5,500 all inclusive were ordered payable by the respondent to the applicant.

The applicant brought a motion under Rule 25(19)(e) of the Family Law Rules to set aside a contempt order made after she failed to attend the hearing.

She asserted that her former counsel advised her that attendance was unnecessary because the hearing date had been moved.

The court held that a party who reasonably relies on incorrect advice from counsel may be considered "unable" to attend within the meaning of the rule.

Given the quasi‑criminal nature of contempt findings and the absence of the applicant’s evidence at the original hearing, the court set aside the contempt finding, fine, and costs order and directed that the issue could be reheard on a full evidentiary record.