Jonathan L. Frustaglio

The plaintiff, Frank Miele, a failed mayoral candidate, brought a lawsuit alleging corruption and fraud against the entire municipal council and mayor of Vaughan, seeking $210 million in damages and disqualification from office.

Miele later admitted his allegations were baseless and apologized.

The defendants sought substantial indemnity costs, totaling over $1.2 million.

The court rejected Miele's arguments for reduced costs, finding his testimony inconsistent and his claims of lack of understanding incredible given his extensive municipal finance background.

The court ruled that bringing a meritless lawsuit is an abuse of process, not public interest litigation, and ordered Miele to pay substantial indemnity costs to the defendants, including $813,101.99 to the City of Vaughan.

The plaintiff, Valleywoods Rentals Inc., brought an action against Yukon Construction Inc. for alleged deficiencies in the construction of exterior entrance stairs, claiming the work failed to comply with the Ontario Building Code and industry standards.

The defendant denied the deficiencies, asserting the work was performed according to the contract and had been approved by relevant authorities.

The court dismissed the plaintiff's action, finding that Valleywoods failed to meet its burden of proof regarding the alleged deficiencies.

The court gave significant weight to the approvals by the Construction Manager, Project Architect, and the City of Toronto (granting occupancy), and found the plaintiff's expert and hearsay evidence unreliable.

Costs were awarded to the defendant.

This decision addresses motions in three consolidated construction lien actions.

Sutton Forming Inc. sought a declaration on Homes by DeSantis (Lake) Inc.'s minimum holdback obligation under the Construction Lien Act and an order for payment from it.

The court clarified that the holdback is calculated based on the contract price for services actually supplied, not amounts paid, and rejected the owner's objections regarding certificate accuracy and set-off for deficiencies.

The court granted leave for the motion, declared the minimum holdback, and ordered specific payments to Sutton and its sub-subcontractors from the holdback.

This appeal concerned the priority of a solicitor's charging order over construction lien trust funds, specifically whether interest on the contract price is included in the trust funds.

Sutherland Law, the appellant, appealed the Divisional Court's decision which had granted Great Northern Insulation Services Ltd. priority for its claim, including interest, over Sutherland Law's charging order.

The Court of Appeal affirmed the Divisional Court's decision, holding that interest on the contract price is included in the trust funds under the Construction Lien Act, and that the Divisional Court had jurisdiction to hear the appeal.

The court also confirmed that there is only one trust fund for subcontractors and that a contractor cannot claim against trust funds if it used trust funds to pay another subcontractor.

The appeal was dismissed.

The moving party defendants sought disclosure of a settlement agreement between the plaintiffs and the settling defendants, arguing it altered the adversarial landscape.

The plaintiffs claimed settlement privilege but failed to adduce evidence that the agreement did not require cooperation.

After reviewing the sealed agreement, the court found it was a typical settlement that did not alter the adversarial landscape and dismissed the motion.

However, the court awarded costs of $1,000 to the unsuccessful moving party defendants because the plaintiffs' failure to provide evidence unreasonably complicated the motion.

This endorsement arises from a pre-trial conference where the defendants, Perrera and Yu, sought to bring a motion for disclosure of a settlement between the plaintiffs and co-defendants, arguing its relevance to the action against them.

The plaintiffs maintained the settlement was privileged.

The court scheduled the defendants' disclosure motion and addressed the possibility of a trial adjournment, stating the trial should proceed as scheduled but allowing for a renewed adjournment request if new information arises from the disclosure motion.

The issue of costs for the pre-trial conference was reserved to the trial judge.

This endorsement addresses a pre-trial conference where counsel for two defendants was unprepared due to not receiving the file from previous counsel.

The pre-trial, initially scheduled for September 25, 2020, and then rescheduled, was further adjourned to February 26, 2021.

The court directed the managing partner of the former firm, Baker McKenzie, to attend the rescheduled pre-trial if the file is not provided by February 24, 2021.

The endorsement also noted that trial adjournment terms and costs of the current pre-trial would be addressed at the next conference.

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.

This decision addresses costs following a 17-day trial involving two consolidated actions: a construction lien action and a debt recovery action.

The court awarded costs to Kalogon Spar Ltd. and Dino Coliviras, fixing the amount at $190,000 inclusive of disbursements and HST, payable from a standby letter of credit.

The court declined to apply Rule 49 cost consequences due to insufficient evidence from Kalogon regarding costs incurred at the time of settlement offers.

The court considered various factors, including the parties' conduct, the complexity of the proceedings, and the proportionality of the award, noting that both parties displayed inflexibility and Kalogon's principal failed to keep proper records, which significantly increased litigation costs.

The plaintiff, Caruk-Hall Construction Inc. (CH), moved to stay its action and the defendants' counterclaim pending a Tarion regulatory proceeding, or alternatively, to stay or strike paragraphs related to CH's alleged failure to enroll the project under the Ontario New Home Warranties Plan Act (ONHWPA).

The defendants opposed.

The court found a substantial overlap of issues regarding CH's "builder" status and ONHWPA enrollment between the civil action and the Tarion proceeding.

While acknowledging the penal nature of the Tarion charges and potential self-incrimination for CH's principals, the court determined that existing protections (implied undertaking rule, sealing orders) were sufficient.

The court rejected a full stay, noting the Construction Act's mandate for summary lien actions and the lack of evidence for double recovery.

Ultimately, the court granted a limited stay of only the "Overlapping Paragraphs" in the defendants' pleading that directly concerned CH's builder status and ONHWPA enrollment, finding the OCJ to be the more appropriate forum for these specific issues.

The plaintiff sought a declaration that a judgment previously entered against the individual defendant, Chris Mace, survived bankruptcy pursuant to s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The court found that the plaintiff failed to demonstrate that the debt arose from fraud, embezzlement, misappropriation, or defalcation while the defendant acted in a fiduciary capacity.

The jurisprudence requires an element of wrongdoing, dishonesty, or improper conduct for the exception to apply.

The default judgment obtained for payment of money only, and the general pleadings, were insufficient to establish the necessary misconduct.

The defendant's affidavit, which the plaintiff did not cross-examine, described an unfortunate financial situation rather than fraud.

Consequently, the motion was dismissed, and no costs were awarded, as it would be unfair to burden the plaintiff with costs given the 'fresh start' policy of the BIA.

The defendants brought a motion seeking to exclude the plaintiff from the examination for discovery of the defendant C.H., who alleged sexual assault by the plaintiff when C.H. was a minor.

The plaintiff denied the allegations and opposed exclusion, asserting his right to be present.

The court, considering medical evidence of C.H.'s distress and drawing parallels to testimonial accommodations in criminal law (e.g., Criminal Code s. 486.2), ordered a testimonial accommodation.

C.H. was to be examined in a separate room, with the plaintiff observing via closed-circuit television.

The court clarified that such accommodation does not imply an admission of guilt and that the additional costs would be borne by the defendants.

The appellants appealed from a motion judge's order dismissing their motion seeking a declaration that a default judgment against the respondent Chris Mace survived his bankruptcy under sections 178(1)(d) and 178(1)(h) of the Bankruptcy and Insolvency Act.

The appellants obtained a default judgment by having the Registrar sign it under Rule 19.04 of the Rules of Civil Procedure, which is limited to claims for "a debt or liquidated demand in money." The Court of Appeal upheld the motion judge's decision, finding that the generic pleadings in the statement of claim were insufficient to establish the type of misconduct required for exemption under section 178(1)(d), and that the motion judge was not required to go beyond the pleadings to make fresh findings of fact.

The plaintiff brought a motion to compel the defendant to file a statement of defence.

The defendant brought a cross-motion to compel the plaintiff to answer a 91-question Demand for Particulars before filing the defence.

The court found that the defendant already had sufficient information to plead, as evidenced by a previously filed draft statement of defence, and that most of the demanded particulars were either already in the statement of claim or within the defendant's knowledge.

The court ordered the plaintiff to answer only one demand regarding specific statutory provisions relied upon, and ordered the defendant to file his statement of defence within 20 days thereafter.

Tagg Industries brought a motion for summary judgment against its former employee, Otto Rieder, seeking repayment of a $40,000 loan.

Tagg argued Rieder was fired for just cause, thus forfeiting a bonus that would have forgiven the loan.

Rieder countered that he was fired without just cause and was entitled to common law notice, which would extend to the bonus vesting date, thereby forgiving the loan.

Rieder also sought summary judgment on his counterclaim for wrongful dismissal.

The court dismissed Tagg's motion, finding Rieder was fired without just cause.

The court determined Rieder was entitled to at least one month's common law notice, calculated as a calendar month, which extended to the bonus vesting date, thereby offsetting the loan.

The court also granted summary judgment to Rieder on his counterclaim, awarding him damages for wrongful dismissal.

The defendant moved to set aside a noting in default and for particulars, while the plaintiff brought a cross-motion to strike the defendant's affidavit and demand for particulars.

The court set aside the noting in default and ordered a few particulars, finding the statement of claim largely sufficient.

In supplementary reasons for decision on costs, the court found that while the defendant was entitled to costs for the default motion and the plaintiff for the particulars motion, the overall outcome was mixed, leading to no order for costs for either party.

The appellant appealed a Small Claims Court decision refusing his request for an adjournment and granting judgment to the respondent for outstanding credit card debt.

The appellant argued the Deputy Judge failed to consider his vulnerability as a self-represented litigant.

The Superior Court of Justice dismissed the appeal, finding that the appellant had raised no valid defence to the debt and that an adjournment would only delay the inevitable and prejudice the respondent.

The court also ordered the severance of the joint tenancy on the appellant's property to allow the respondent to register the debt.

This decision concerns the costs of a motion for particulars where success was divided.

The defendants sought particulars of allegations in the statement of claim, and the court ordered some particulars while dismissing others.

The court declined to accept further costs submissions, emphasizing the need for an expeditious process.

Finding that success was more or less evenly divided and that both parties contributed to the issues, the court concluded that no order for costs was fair and reasonable.

The defendants brought a motion under Rule 25.10 of the Rules of Civil Procedure seeking particulars of numerous allegations in the plaintiff's statement of claim, particularly those alleging fraud, misrepresentation, and breach of trust.

The court found the statement of claim generally sufficient but ordered the plaintiff to provide specific particulars regarding allegedly improper payments, including personal expenses, loans, liabilities, and consulting fees, as identified in paragraph 60 of the statement of claim.

Other requested particulars, especially concerning the distribution of sale proceeds and general allegations, were dismissed as either sufficiently pleaded or matters for oral discovery.