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.

The plaintiffs sued two former employees for breach of employment agreements, breach of fiduciary duty, breach of implied duties of loyalty and good faith, and conversion after they left to work for a competitor.

The court found that the non-competition clauses in the employment agreements were ambiguous and overly broad, and therefore unenforceable.

The court also found that the employees were not fiduciaries.

While one employee breached his implied duty of loyalty and his obligation to safeguard confidential information by forwarding company documents to his personal email and doing work for a competitor while still employed, the plaintiffs failed to prove that these breaches caused any damages.

The action was dismissed against one employee, and the other was ordered to pay $1 in nominal damages.

The moving parties brought a motion for leave to appeal the order of Dunphy J. dated May 13, 2021.

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

The applicant, the lowest bidder on a municipal construction contract, sought judicial review of the City of Toronto's decision to award the contract to a competing bidder.

The applicant brought the application before the Superior Court of Justice without seeking leave under section 6(2) of the Judicial Review Procedure Act.

The court declined jurisdiction, holding that applications for judicial review must be brought before the Divisional Court in accordance with the Act and the Consolidated Practice Direction.

The application was dismissed for being brought in the wrong forum.

Forest Grove Homes Limited appealed a Licence Appeal Tribunal decision ordering Tarion Warranty Corporation to repair three Ontario Building Code violations related to the roof of a new home owned by Elaine Ducas.

Ducas cross-appealed, seeking an order requiring Tarion to investigate and correct the underlying cause of water penetration, which the Tribunal found was likely ice damming.

The Divisional Court dismissed both the appeal and the cross-appeal, finding no palpable and overriding error in the Tribunal's factual findings regarding the building code violations, and agreeing that the statutory warranty did not require the builder to investigate the cause of the leak absent proof that a design flaw caused the ice damming.

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 parties brought a motion for leave to appeal an order of the Superior Court of Justice.

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

The plaintiff in a construction dispute brought a motion to compel the defendants to answer questions refused at discovery and to produce a further and better affidavit of documents.

The core issue was whether the defendants implicitly waived solicitor-client privilege regarding advice received during the negotiation of an Amending Agreement.

The Master found no waiver regarding the negotiation of the agreement, but found an implicit waiver regarding advice on payments made after the agreement.

The Master also ordered disclosure of competing quotations but denied requests for consultant files and financial means.

The plaintiff was granted leave to complete the discovery and awarded partial indemnity costs of $6,500.

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.

The plaintiff moved to correct a misnomer in his Statement of Claim by substituting 2090990 Ontario Inc. (Cezanne Homes) for the unnamed defendant 'XYZ Contracting Corporation'.

The plaintiff alleged that renovations at his neighbours' property caused structural damage to his own property.

The court found that the plaintiff intended to sue the contractor responsible for the renovations and that Cezanne Homes, upon reading the claim, would know it was the intended defendant.

The court allowed the substitution, finding no non-compensable prejudice to the proposed defendant.

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 parties engaged in a dispute over the renovation of a residential property.

The plaintiff contractor claimed unpaid amounts for construction work, alleging an oral agreement for project management and general contracting.

The defendant homeowners alleged the project was a joint venture to flip the property and claimed damages for incomplete and deficient work, as well as unpaid loans.

The court found no enforceable contract or joint venture existed due to a lack of certainty of terms.

The court applied quantum meruit, valuing the work performed by the contractor and deducting the cost of proven deficiencies.

The court ordered the homeowners to pay the remaining balance to the contractor.

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.