John Lo Faso

The appellants, trustees of the Estate of Vincent Di Santo and the Vincent Di Santo 2003 Family Trust, appealed an order that permanently removed them and appointed CIBC Trust Corporation as replacement.

The original order also granted further interim funding to the respondent, Ottavio Di Santo.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's decision that permanent removal was sought and necessary.

The court upheld the motion judge's finding that the trustees' mindset had become intractable, they were in a position of conflict, acted unilaterally, or could not objectively exercise their discretion, thus meeting the high threshold of "clear necessity" for trustee removal.

The applicant, Marmak Holdings Inc., brought a motion to compel an independent accountant (Baker Tilly Vaughan/KPMG) to produce its complete working file and underlying information related to a report prepared as part of a litigation settlement.

The report determined financial obligations between joint venture parties.

The court interpreted the original consent order, which granted access to "any and all information provided to" the accountant, and considered professional accounting standards.

The court dismissed the request for the complete file and working papers, finding them to be the accountant's work product.

However, it ordered the production of specific financial information akin to client property, such as starting trial balances, adjusting entries, accounts receivable/payable lists, and a schedule of rental income, as well as information supporting a market adjustment made in the report.

The court also ordered the parties to pay the accountant's outstanding invoice and fixed costs for the motion.

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 defendants moved to strike the plaintiff's 60-paragraph statement of claim, which alleged a broad conspiracy of mortgage fraud involving numerous parties and properties.

The court struck the claim in its entirety under Rule 25.11, finding it unduly prolix, confusing, and likely to prejudice a fair trial.

However, the court granted the plaintiff leave to re-plead specific, legally viable claims related to her own property, while denying leave to re-plead claims that constituted a collateral attack on a prior judgment or sought relief on behalf of third parties.

The Court of Appeal heard three motions related to an ongoing appeal concerning the removal and replacement of estate and family trust trustees.

The Appellants (original trustees) sought a stay of the order removing them and appointing CIBC Trust Corporation.

The Respondent (Ottavio Di Santo) sought to lift a stay on a costs order and to quash or stay the Appellants' appeal.

The court granted the Appellants' stay motion, finding a serious issue, irreparable harm, and balance of convenience in their favour.

The Respondent's motions to lift the costs stay and to quash/stay the appeal were dismissed.

Costs were ordered payable from the Estate.

The plaintiff brought a motion to strike the defendant's statement of defence after the defendant repeatedly delayed and ultimately failed to attend scheduled examinations for discovery.

Despite a prior court order mandating the completion of discoveries by a set date and warning of consequences for further non-attendance, the defendant refused to proceed unless it could examine the plaintiff first, contrary to the plaintiff's notice of examination.

The court found the defendant's conduct to be a deliberate attempt to delay the proceedings and struck the statement of defence pursuant to Rules 34.15(1)(b) and 60.12.

The applicant sought an extension of time to perfect an appeal from an order dismissing an oppression application under the Ontario Business Corporations Act.

The Court of Appeal determined it lacked jurisdiction to hear the appeal, as section 255 of the Act specifies that appeals from such orders lie to the Divisional Court.

Despite finding that other factors for an extension of time (intention to appeal, brief delay, minimal prejudice) would have favoured the applicant, the motion was dismissed due to the fundamental lack of jurisdiction.

The appellant contractor appealed a summary judgment decision enforcing a stipulated remedy in a mediated settlement agreement.

The settlement required the appellant to remediate construction deficiencies by a deadline, failing which $30,000 held in court would be forfeited to the respondent.

The motion judge found the appellant failed to remediate the deficiencies and declined to grant relief from forfeiture.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's characterization of the clause as a forfeiture rather than a penalty, nor in her conclusion that enforcing the forfeiture was not unconscionable.

The defendant was successful on a motion regarding a breach of Minutes of Settlement and sought costs on a substantial indemnity basis in the amount of $19,597.81, relying on a series of favourable offers to settle.

The plaintiff argued the motion was not complex and costs should not exceed $5,000.00.

The court found the requested amount excessive and awarded the defendant costs of $10,000.00 inclusive of disbursements and taxes.

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 moving party brought a motion for leave to appeal an order dated December 17, 2020.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $2,500 to the responding party.

The parties entered into Minutes of Settlement to resolve a dispute over commercial roof repairs and a construction lien.

The settlement required the responding party to rectify specific deficiencies by a deadline, subject to approval by an independent engineering firm, failing which funds held in court would be released to the moving party and the action dismissed.

The engineering firm found the responding party failed to correct all deficiencies.

The moving party sought summary judgment to enforce the settlement, while the responding party cross-moved for relief from forfeiture.

The court granted the moving party's motion and dismissed the cross-motion, finding the settlement terms constituted an agreed-upon forfeiture rather than an unconscionable penalty, and ordered the funds released.

The appellants appealed an order directing an election for a new common board of directors for two related not-for-profit corporations and ordering the delivery of keys to a shared property.

The Divisional Court dismissed the appeal, finding that the application judge had jurisdiction under the Corporations Act to order the election, did not breach procedural fairness, provided adequate reasons, and awarded reasonable costs.

Cindy Cordi and Carlo Cordi separated after over three decades of marriage.

Cindy sought divorce, spousal support, equalization of net family property, and damages for alleged abusive behavior.

She also claimed a beneficial interest in a farmhouse owned by Carlo's father, Vincenzo Cordi, or, alternatively, unjust enrichment for contributions made to it.

The court granted divorce, awarded Cindy spousal support at the high end of the Spousal Support Advisory Guidelines range ($3,078 per month indefinitely), and an equalization payment of $5,690.07.

The court imputed income to both parties for support calculations, finding Carlo received undeclared cash and Cindy was intentionally underemployed.

Cindy's claims for damages for intentional infliction of mental suffering, and her claims for a trust or unjust enrichment regarding the farmhouse, were dismissed.

The defendant, Rock Con Forming Ltd., moved to set aside a noting in default, a default judgment, and a notice of garnishment, and sought leave to file a statement of defence and crossclaim.

The action arose from a construction project where Quadform Ltd. claimed non-payment for services.

Rock Con argued it was never properly served with the statement of claim and had a meritorious 'pay when paid' defence.

The court found that while Rock Con likely had notice of the action, Quadform failed in its duty of full and fair disclosure by not checking Canada Post tracking history for registered mail service when seeking default judgment ex parte.

Given Quadform had already received payment from a co-defendant, the court granted Rock Con's motion, setting aside the default judgment and garnishment, and allowing it to file a defence, but made no order as to costs due to both parties' conduct.

The court held a case management conference in a land dispute action involving a failed real estate transaction and a discharged certificate of pending litigation.

The court issued procedural directions regarding the amendment of pleadings, demands for particulars, and discussions on security for costs, while setting dates for examinations for discovery and the next case management conference.

The moving party sought leave to appeal from an order dismissing its appeal of an interlocutory order that discharged a certificate of pending litigation.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

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.

The successful plaintiff/respondent sought costs on a substantial indemnity scale following an appeal.

The defendants/appellants argued no costs should be awarded as the plaintiff was seeking an indulgence.

The court found no basis to depart from the loser-pay approach, as the defendants brought the appeal to overturn a Master's decision.

The court found no exceptional circumstances to justify substantial indemnity costs and awarded partial indemnity costs of $8,385.74.

The defendants appealed a Master's order that set aside a registrar's dismissal of the plaintiff's action for delay under Rule 48.

The court reviewed the Master's application of the Reid factors, noting that the Master reasonably found the delay was due to counsel's inadvertence and that the defendants suffered no actual prejudice.

Finding no errors of law or palpable and overriding errors of fact, the court dismissed the appeal and upheld the reinstatement of the action.