Joseph C. Vieni

The plaintiff brought a motion for an extension of time to appeal an order dismissing its motion to oppose confirmation of a Master's report in a construction lien action.

The plaintiff also sought an order requiring the defendants to repay monies obtained out of court pursuant to the report.

The Divisional Court dismissed the motion, finding that while the plaintiff had an intention to appeal and an explanation for the delay, the defendants would suffer prejudice, the appeal lacked merit as it attacked factual findings, and the justice of the case did not favour the plaintiff.

The plaintiff appealed a master's report following a lengthy construction lien trial arising from a residential development joint venture.

The appellant argued that the master committed factual and legal errors in rejecting several claims for extras, carpentry services, site supervision services, and in finding that the plaintiff’s construction lien rights had expired.

The court held that the applicable standard of review required substantial deference to a master conducting a trial on a reference, particularly regarding findings of fact and credibility.

After reviewing transcripts and documentary evidence, the court concluded that the alleged errors largely involved disagreements over credibility assessments and weight of evidence.

Finding no palpable and overriding error or error of law, the court confirmed the master’s decision and dismissed the appeal.

Following a trial in a construction lien matter, the court determined the issues of costs and the disposition of cash security posted to vacate the liens.

The court declined to award costs to either party due to divided success and the conduct of the parties, including the plaintiff's deliberate preservation of expired lien rights and exaggerated claims.

The court also dismissed the plaintiff's request to have the cash security paid into court as a 'specific fund' under Rule 45.02, finding no evidence that the balance of convenience favoured the order.

The cash security was ordered returned to the defendant MJR.

The plaintiff framing contractor brought three construction lien actions against the defendants arising from a joint venture to purchase, sever, and redevelop residential lots.

The court found that the plaintiff was not an 'owner' under the Construction Lien Act and was owed $70,400 for its contract scope of work plus $21,824.43 for conceded extras.

However, the court dismissed the plaintiff's claims for site supervision and other extras, finding they were part of the plaintiff's principal's obligations to the joint venture.

The court also held that the plaintiff's lien rights had expired before registration, as the work allegedly done within the 45-day period was not performed by the plaintiff.

The claims for lien were discharged and judgment was granted for breach of contract.

The defendant landlord sought leave to appeal an interlocutory order that dismissed its motion for security for costs, particulars, and a further and better Affidavit of Documents.

The motions judge had found the corporate plaintiff and its principal to be genuinely impecunious, making an order for security for costs unjust.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motions judge's application of the Rules of Civil Procedure, particularly regarding proportionality and the court's discretion to dispense with strict compliance.

The appellants appealed the dismissal of their action alleging that the respondents, former officers and directors of a renovation company, conspired to divest the company of its assets to prevent the appellants from realizing on a default judgment.

The Court of Appeal dismissed the appeal, finding that the appellants had only pleaded the tort of conspiracy and failed to prove that they suffered special damages as a result of the respondents' unlawful conduct.

The court also rejected arguments regarding reasonable apprehension of bias and entitlement to punitive damages.

The appellants appealed a summary judgment granted in favour of the respondent Bank.

The Court of Appeal found that the motion judge correctly determined that a key paragraph in the Bank's supporting affidavit should be ignored because the affiant failed to disclose the sources of her knowledge.

However, having made that determination, the motion judge erred in granting summary judgment, as there remained a genuine issue for trial regarding how much, if anything, the corporate appellant owed the Bank.

The appeal was allowed and the Bank's motion for summary judgment was dismissed.

The appellants appealed a trial judgment, arguing that the trial judge misapprehended the evidence.

The Court of Appeal dismissed the appeal, finding that although the evidence on certain key issues was less clear than it could have been, the trial judge's findings were supported by the record and there was no misappreciation of the evidence.

The appellant appealed a trial decision finding he breached a contract by tricking the respondent into signing a Trust Deed and Power of Attorney after promising her one-half ownership of a home.

The appellant argued the agreement was unenforceable under the Statute of Frauds as it was not in writing.

The Court of Appeal dismissed the appeal, holding that the Statute of Frauds did not apply because the Deed was in writing and there was part performance when the respondent took possession and spent money improving the home.