Jonathan L. Frustaglio

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 purchasers of a new home terminated their agreement of purchase and sale after the builder failed to complete construction by the outside closing date.

The builder disputed the termination, claiming the purchasers had verbally agreed to an extension, and brought an application for specific performance.

The purchasers brought a motion to stay the application and refer the dispute to arbitration pursuant to the Tarion Addendum.

The court applied the competence-competence principle and found it was at least arguable that the dispute fell within the scope of the arbitration clause.

The builder's application was stayed and the matter referred to arbitration.

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.

The plaintiff moved for summary judgment for $81,385.99 for unpaid fish deliveries against the defendants, claiming the individual defendants were personally liable as partners of an unincorporated entity.

The defendants argued the corporate entity Tridente Group Ltd. was the proper contracting party and admitted $22,095.38 was owed by that corporation.

The court found genuine issues requiring a trial regarding the total amount owed and the personal liability of the individual defendants, but granted partial summary judgment for the admitted amount against Tridente Group Ltd.

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.

The defendant brought a motion to set aside a default judgment of over $467,000 entered against her in an action for unpaid construction materials.

The defendant claimed she was unknowingly made a director of her son's construction company and had no involvement in its operations.

Applying the five-factor test under Rule 19.08, the court found she had an arguable defence and a plausible explanation for her default, having relied on her son's assurances.

Despite significant delay in bringing the motion, the court balanced the factors and set aside the default judgment, ordering the defendant to pay $2,000 in costs thrown away to the plaintiffs.

The proposed defendant brought a motion to remove the plaintiff's counsel and his law firm from acting on a pending motion for a Certificate of Pending Litigation, arguing that the counsel had sworn an affidavit and thus became a witness.

The Master dismissed the motion, finding that the counsel was not a necessary witness at trial and that the firm could simply substitute an affidavit from another member of the firm.

The court emphasized proportionality and noted that removing a firm merely because a lawyer swore a procedural affidavit on a motion is unnecessary.

The appellant appealed a decision dismissing his motion to set aside minutes of settlement in a family law proceeding.

He argued the motion judge erred in making credibility findings based on affidavit evidence, demonstrated bias, and that the absence of a recording of the motion argument denied him natural justice.

The Court of Appeal dismissed the appeal, finding the motion judge was entitled to determine the matter on the affidavits, the judge's criticism of the appellant did not signal bias, and there is no legal requirement for motion arguments to be transcribed.

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.