John Sestito

The plaintiff, My Lucky Spot, brought a motion for default judgment against the defendants for breach of a roofing contract.

The defendants received a significant deposit but failed to perform any work and were noted in default.

The court applied the test for default judgment, finding that the deemed admissions from the Statement of Claim established liability for all defendants, including personal liability for David Lanzilota, the directing mind, by piercing the corporate veil due to fraudulent purpose.

The court awarded damages for the lost deposit, lost revenue (limited to the amount pleaded), mitigation costs, and the increased cost of a new contract to fix the roof.

The applicant landlord brought an application for a declaration that a commercial tenancy was terminated and sought vacant possession.

The respondent tenant argued that the lease had been extended to August 2023 through either a written agreement or an oral agreement based on part performance.

The court found that the landlord had waived strict compliance with the written notice requirement for the option to renew, resulting in an automatic one-year extension.

However, the court rejected the tenant's argument for a longer extension, finding no written agreement and that the doctrine of part performance did not apply.

The court ordered the tenant to deliver vacant possession at the end of the one-year extension period.

The defendant subcontractor moved to declare the plaintiff's construction lien expired and to discharge the lien.

At the time the plaintiff preserved and perfected its lien, the plaintiff corporation had been dissolved for failure to pay a fee, though it was later revived.

The court held that because the corporation was dissolved at the relevant time, it was not a legal entity entitled to preserve or perfect a lien.

The court found it had no equitable discretion to validate the lien retroactively, and even if it did, it would not exercise it in these circumstances.

The motion was granted, the lien discharged, and the security ordered returned.

The appellant appealed a summary judgment dismissing its action for outstanding amounts under a construction contract.

The Court of Appeal upheld the motion judge's findings that summary judgment was appropriate, that the respondent had not waived its right to rely on the contract's strict notice requirements, and that equitable claims for quantum meruit and unjust enrichment were precluded by the existence of a valid contract.

The appeal was dismissed with costs.

The parties settled a commercial tenancy dispute prior to the hearing of their application and cross-application.

However, the court issued an endorsement to address a false statement made by the applicant in a sworn affidavit regarding his travel to China.

After receiving an explanation that the applicant had indeed travelled to China but on a different airline and date than sworn, the court declined to pursue a contempt hearing.

The court cautioned that false statements in affidavits are taken seriously and could preclude equitable remedies such as relief against forfeiture.

The defendant, Attorney General of Canada, brought a motion for summary judgment to dismiss the plaintiff contractor's claim for additional compensation related to alleged delays and extra work on a construction project.

The court found that the plaintiff failed to comply with the strict notice provisions of the contract, which barred its claims.

The court also rejected the plaintiff's arguments that the defendant waived strict compliance with the contract or that the plaintiff was entitled to compensation based on quantum meruit or unjust enrichment.

The motion for summary judgment was granted and the action was dismissed.

The moving party, an appliance supplier, sought leave to register a certificate of pending litigation against a condominium unit owned by the responding parties.

The moving party alleged it was owed $155,000 for appliances supplied to a previous project and had entered into an agreement of purchase and sale for the unit as security for the debt.

The responding parties argued the agreement prohibited the registration of a certificate of pending litigation.

The court granted the motion, finding that the potential harm to the moving party outweighed the harm to the responding parties, the responding parties' corporations were likely to become shell companies, and the responding parties were estopped from relying on the non-registration clause due to their own default.

The defendants brought a motion for security for costs and to discharge two certificates of pending litigation (CPLs) registered against their property by the plaintiff corporation.

The plaintiff had commenced an action for specific performance of an agreement of purchase and sale.

The court granted the motion for security for costs, finding the plaintiff had insufficient assets to satisfy a potential costs award, and ordered $25,000 to be posted.

The court declined to discharge the primary CPL, finding the plaintiff had a legitimate interest in the unique property and that damages would be difficult to quantify, though a second erroneously registered CPL was discharged on consent.

The plaintiff, Alberto Becerra, sought leave to issue a fresh as amended statement of claim in a construction lien action, aiming to increase the claim quantum, add new grounds of recovery including unjust enrichment, punitive damages, and claims related to an unrelated prior project.

The court dismissed the motion, finding that leave ought not be granted as the motion was neither necessary nor would it expedite the resolution of the issues, as required by the Construction Lien Act.

Furthermore, even on the merits, the proposed amendments were largely statute-barred under the Limitations Act, constituted improper joinder of unrelated claims, or attempted to join a breach of trust claim, which is precluded by the Construction Lien Act.

Following the dismissal of the appellants' appeal from a Small Claims Court decision, the successful respondent sought costs on a substantial or full indemnity scale.

The court determined that partial indemnity was the appropriate scale, as no special circumstances justified a higher scale.

Applying the principles of fairness, reasonableness, and proportionality, the court rejected the respondent's claim for over $9,600 in costs, noting the amount in issue at trial was only $6,872.

Costs were fixed at $3,500 all-inclusive.

The appellants appealed a Small Claims Court decision ordering them to pay damages for breach of a contract for GPS tracking systems.

The central issue was whether the trial judge erred in rectifying the contract's cancellation provision to require a fee of $399 'per unit' rather than a flat fee of $399 for all 31 units.

The Divisional Court dismissed the appeal, finding that the trial judge correctly identified an ambiguity and properly applied the remedy of rectification based on the mutual mistake and common intention of the parties to amortize the hardware costs over the life of the contract.