John Lo Faso

The appellants appealed a summary judgment declaring them in breach of the trust provisions of the Construction Lien Act and ordering them to pay $216,662.84 to Airex Inc. Ben Air System Inc. had entered into a subcontract with Omico Mechanical Ltd. to perform HVAC work on a TTC facility and ordered equipment from Airex.

The appellants argued that Ben Air had paid out more money on the project than it received, and therefore had not breached the trust provisions.

The Court of Appeal upheld the summary judgment, finding that the appellants failed to file evidence of sufficient weight to support their position.

The evidence was contradictory, lacked documentary support, and was delivered late.

The court found that once Airex established it was a subcontractor owed money and that Ben Air had received trust funds, it was Ben Air's burden to show the trust monies had been properly applied.

The respondent, Zhong Wei, sought costs against the applicant, Jonathan Beatty, and his counsel, John Lo Faso, on a joint and several basis, for a motion to compel answers to undertakings and refusals.

The Master found that counsel's conduct during cross-examination was improper and caused unnecessary costs and delay.

The Master exercised discretion under Rule 57.07(1)(c) to order counsel to personally pay a portion of Wei's costs, deferring the quantum determination pending the filing of settlement offers.

The plaintiff sought to enforce a Quebec default judgment against the personal defendant, Lorenzo Panarese, in Ontario.

Panarese challenged the Quebec court's jurisdiction and argued that the judgment should not be enforced due to breach of natural justice or fraud.

The court found that the Quebec court had a real and substantial connection to the dispute and that Panarese had attorned to its jurisdiction by participating in the Quebec proceedings without reserving on jurisdiction.

The court dismissed the defences of natural justice and fraud, concluding that the evidence did not support a finding of fraud and that issues of service and the right to be heard were already litigated and decided in Quebec.

The Ontario court granted recognition and enforcement of the Quebec judgment against Panarese.

The plaintiff, Monro Ltd., brought a motion for judgment against the corporate defendant, Faga Group Construction Ltd., and its individual directors, Giuliana Caprara and Marco Caprara, for breach of trust under the Construction Lien Act.

The defendants' statement of defence was struck, and they were noted in default.

The court granted judgment for the outstanding amount of $116,894.77 plus prejudgment interest, declared the defendants in breach of trust, and ruled that the judgment would not be released by a discharge in bankruptcy, holding the individual directors jointly and severally liable for acquiescing in the breach.

Costs were also awarded to the plaintiff.

The appellant, a plumbing subcontractor, registered general liens against two home development projects after the general contractor went bankrupt.

The general contractor's contracts with the owners stipulated that liens would arise and expire on a lot-by-lot basis.

The motion judge and Divisional Court discharged the general liens, holding that section 20(2) of the Construction Lien Act precludes a subcontractor from claiming a general lien when the main contract contains a lot-by-lot restriction.

The Court of Appeal affirmed this interpretation, finding that a subcontractor's right to a general lien flows from the main contract.

The Court also declined to apply the curative provisions of section 6 or treat the liens as excessive under section 35.

The applicants, two of the estate trustees, brought a motion for directions under Rule 75.06 of the Rules of Civil Procedure to wind up the estate of Maria Christina Sampogna.

The motion addressed various disputes between the siblings, who were all beneficiaries and executors, regarding estate expenses, household contents, jewellery, and outstanding costs awards from previous litigation.

The court provided detailed directions for the distribution of assets, allocation of expenses, and payment of costs, ultimately aiming to finalize the estate administration and allow the applicants to be removed as trustees.

The court rejected allegations of theft against the applicants and ordered the respondents to bear personal responsibility for certain costs due to their unreasonable conduct.

On a motion arising within long-running debt and fraudulent conveyance litigation, the moving party sought to cross-examine responding parties on affidavit materials that had already been the subject of earlier cross-examinations on a prior summary judgment motion.

The court held that, although it had serious doubts about the utility of renewed questioning and considered the issues largely unchanged, the moving party should not be barred outright from a focused further cross-examination given the different framing of the new motion.

The court therefore allowed limited cross-examinations of two responding parties, capped at three hours each, and restricted the scope for further disputes over undertakings.

Costs were left to the motions judge hearing the summary judgment motion.

The plaintiff brought a motion concerning the scope of cross-examination on affidavits relied upon by the defendants in ongoing civil litigation.

The defendants argued that the materials had already been the subject of extensive cross-examinations during an earlier similar motion and that further cross-examination should not be permitted.

The plaintiff disagreed and sought the opportunity to conduct additional cross-examinations.

The court determined that the issue required determination on the record rather than by conference call.

The parties were directed to file brief facta addressing the issue and to attend for submissions on a scheduled date.

Following the dismissal of two appeals heard together, the successful respondents sought costs.

One respondent sought substantial indemnity costs based on a Rule 49 offer to settle, while the other sought partial indemnity costs.

The appellant argued that no costs should be awarded because the appeal raised a novel issue of law regarding the interpretation of the Construction Lien Act.

The Divisional Court rejected the appellant's argument, finding the issue was not novel and the appellant's interpretation would have rendered section 20(2) of the Act meaningless.

The court awarded costs of $7,500 to each of the successful respondents.

The appellant, a plumbing subcontractor, registered a general lien against all lots in two subdivisions after the general contractor made an assignment in bankruptcy.

The owners had written contracts with the general contractor specifying that liens would arise and expire on a lot-by-lot basis.

The Divisional Court upheld the motions judge's decision to discharge the general liens, finding that section 20(2) of the Construction Lien Act extinguishes general lien rights for both contractors and subcontractors when the primary contract contains a lot-by-lot provision.

The court also dismissed the appellant's attempt to continue the action for unjust enrichment and quantum meruit, and refused leave to appeal costs.

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.

The parties sought a determination of costs following a seven-day trial that resulted in a net judgment of $24,894.87 for the defendants on their counterclaim.

The defendants sought $80,000 in costs, while the plaintiff argued for no costs due to mixed success and the defendants' failure to admit facts.

The court found that success was mixed, the trial was unnecessarily prolonged, and the costs sought were disproportionate to the recovery.

The court ordered that no costs be awarded to either party.

In a wrongful dismissal action, the defendant employer brought a motion to amend its statement of defence to add a counterclaim alleging that the plaintiff employee had improperly claimed reimbursement for personal expenses and charged personal expenses to the employer’s credit card.

The plaintiff opposed the amendment, arguing the proposed counterclaim was statute-barred under the Limitations Act, 2002 because the underlying documents had been in the employer’s possession for many years.

The court held that the discoverability issue could not be conclusively determined on the limited evidentiary record before it and that it was not clear a reasonably prudent employer ought to have discovered the alleged misconduct earlier.

The court therefore granted leave to amend the pleading, leaving the limitation defence to be determined at trial.

A masonry subcontractor sued a residential home builder and its principals for unpaid invoices relating to masonry work across several housing projects.

The central dispute concerned whether the parties had agreed that the subcontractor could charge additional amounts for masonry work associated with minor grade variations on building lots.

The court accepted the builder’s evidence that, after earlier disputes, the parties agreed that only major grade changes such as walk‑outs, walk‑ups, or look‑outs would justify extra charges.

Numerous individual invoice disputes and counterclaims were resolved on the evidence, resulting in partial recoveries and credits between the parties.

Claims under Part II of the Construction Lien Act alleging breach of trust and personal liability against the corporate principals were dismissed due to lack of evidence of trust breach.

The plaintiff brought a motion for various relief in two related actions involving an alleged improvident sale under a power of sale and a subsequent alleged fraudulent conveyance of another property.

The court granted leave to amend the statement of claim, consolidated the actions, granted relief from the deemed undertaking rule, and awarded partial summary judgment for reinvestment costs improperly retained by the defendant.

However, the court declined to issue a certificate of pending litigation because the property had recently been transferred to an apparent arm's-length purchaser, though it did so without prejudice to future motions.

The moving parties sought costs on a full indemnity basis following a motion involving a certificate of pending litigation, arguing that the opposing party engaged in material non‑disclosure on an ex parte motion and breached the deemed undertaking rule.

The responding party argued that any non‑disclosure was inadvertent and that the alleged breaches were not sufficiently serious to justify substantial or full indemnity costs.

The court reiterated that substantial indemnity costs are reserved for rare and exceptional cases involving reprehensible conduct.

Finding that the conduct did not meet that threshold, the court declined to award full indemnity costs.

Instead, the moving parties were awarded partial indemnity costs in the amount reflected in their bill of costs.

The plaintiff moved for leave to appeal a decision setting aside a Master's order that required the defendant to produce solicitor-client communications.

The defendant had filed an affidavit explaining his previous solicitor's misapprehension of his position in support of a motion to amend his Statement of Defence.

The motion judge held that waiver of privilege depended on whether the amendment was made under Rule 51.05 or Rule 26.01.

The Divisional Court granted leave to appeal, finding reason to doubt the correctness of the motion judge's decision and that the issue of conditional or partial waiver of privilege is of general public importance.

The appellants appealed a summary judgment enforcing a debenture, arguing that a factual dispute over the exercise of an option and a claim for equitable set-off based on alleged misrepresentations raised triable issues.

The Court of Appeal dismissed the appeal, finding that the debenture created a stand-alone debt unaffected by the option agreement, and that the alleged misrepresentations did not go to the root of the respondent's claim.

The appellants appealed an order declaring Mr. Pavicevic dead as of January 10, 1997, under the Declarations of Death Act, 2002.

The Court of Appeal upheld the trial judge's finding that the criteria for a declaration of death were met.

Because Mr. Pavicevic and the respondent held property as joint tenants, title passed automatically to the respondent upon his presumed death, defeating the appellants' spousal support order which was not registered on title until 2005.

The appeal was dismissed.