Joseph Figliomeni

The plaintiff brought an action to collect on a $50,000 loan to the corporate defendant and a personal guarantee allegedly signed by the individual defendant.

The defendants argued the claim was statute-barred under the Limitations Act and that the individual defendant's signature on the guarantee was forged.

The court found the loan was not a demand obligation, meaning the limitation period had not expired.

Although a handwriting expert confirmed the signature on the guarantee was likely forged, the court found the individual defendant had authorized or acquiesced to others signing on his behalf and had a settled intention to guarantee the loan.

Judgment was granted against both defendants.

The plaintiff employer brought a motion for an interlocutory injunction to shut down or restrict a competing deli opened by two former long-term employees.

The plaintiff argued the employees were fiduciaries.

The court found the employees were managers but not fiduciaries, as they lacked strategic authority and the employer was not peculiarly vulnerable to their departure.

The court also found the balance of convenience favoured the defendants and damages would be an adequate remedy.

The motion for an injunction was dismissed.

The plaintiff, the deceased's son, brought a motion for directions seeking disclosure of the deceased's complete will.

The defendant, the deceased's second wife, opposed production on the basis that the will would not be probated as all assets passed by joint right of survivorship.

The court ordered production of the will pursuant to section 9 of the Estates Act, finding that the plaintiff was mentioned in the will, had a potential interest in the estate, and was entitled to satisfy himself as to its contents.

Costs were reserved.

The applicants, a chiropractic business, sought urgent relief after receiving a Notice to Terminate their commercial lease from the respondent landlord.

The core issue was whether the applicants had validly exercised their second five-year option to renew the lease.

The court found that despite the lack of a formal lease document and some irregularities, the applicants had provided timely notice of their intent to renew, and the landlord's subsequent conduct, including rent negotiations, indicated acceptance.

The court concluded the lease was in effect and properly extended.

The applicant brought a motion to appoint replacement estate trustees for the estate of her late husband, following the resignation of the previous trustees amidst a highly fractious family dispute.

The applicant sought the appointment of three family members, while the responding parties sought the appointment of a neutral third party, either Scotiatrust or a senior lawyer.

The court found that the extreme animosity between the two family camps necessitated a neutral institutional trustee to prevent further litigation and ensure the estate's administration.

Scotiatrust was appointed as the Estate Trustee During Litigation.

During a trial regarding allegedly false warranty claims, the court made two evidentiary rulings.

First, the court found the plaintiffs breached the rule in Browne v. Dunn by failing to cross-examine a defence witness on evidence later adduced from customer witnesses to impeach him.

The court admitted the evidence but reserved the right to draw an adverse inference or adjust its weight.

Second, the court granted the defendants leave under Rule 53.08 to use an undisclosed document to cross-examine a plaintiff's witness, on the condition that the defendants recall their own witness to be cross-examined on the document.

During a trial, the defendants sought an order under Rule 53.02 of the Rules of Civil Procedure to tender the evidence of a software company representative by affidavit.

The plaintiffs objected, arguing the evidence was contentious and required cross-examination.

The court dismissed the request, finding the defendants failed to establish the evidence was uncontentious and noting the witness was available to testify virtually.

During a trial, the plaintiffs sought to admit an Industry Canada document into evidence under the public documents exception to the hearsay rule.

The defendants objected, arguing the document did not fit the statutory or common law categories of public documents.

The court dismissed the objection and admitted the document, finding it satisfied the four-part test for the public documents exception as it was prepared by a public official discharging a public duty, intended as a permanent record, and available for public inspection.

In a long-standing and highly acrimonious family trust dispute, the court considered multiple motions, including motions to dismiss for delay and abuse of process, and motions for a further and better accounting.

The court found that the plaintiffs (two of the sons) had engaged in an abuse of process through a 'scorched-earth' litigation strategy, including failing to produce relevant documents they controlled, changing counsel repeatedly, refusing to mediate, and launching collateral attacks.

Consequently, the court dismissed their actions.

However, recognizing that the trusts still required an accounting for the benefit of the other beneficiaries (the grandchildren), the court ordered the remaining trustees to provide a further and better accounting, and ordered the redemption of the matriarch's shares in the underlying holding company.

In an ongoing estate dispute between a widow and her children, the applicant widow brought a motion to add two corporate parties, admit a late affidavit regarding her health, substitute written interrogatories for oral cross-examination, and determine the scope of cross-examination.

The court added the corporate parties, finding one to be a necessary party.

The court admitted the late affidavit but excluded the attached medical reports as inadmissible hearsay.

The court declined to dispense with oral cross-examination, finding insufficient evidence of serious harm, but ordered specific accommodations for the 93-year-old applicant.

Finally, the court limited the scope of cross-examination to the three issues previously deemed urgent to conserve judicial resources.

This endorsement addresses the costs of a motion brought by HGR (defendants in a related solicitor negligence action) for trial together and common discoveries in two related actions.

The court had previously granted the request for trial together but dismissed common discoveries.

Both HGR and Mr. Hurst (the plaintiff) claimed substantial success.

The court found divided success but determined HGR was overall more successful.

HGR sought $12,000 in costs, and the court ordered Mr. Hurst to pay HGR $8,500.

The court also considered the COVID-19 pandemic as a special circumstance to defer the payment of costs.

The applicant, widow and estate trustee of a deceased business partner, brought an application against the surviving partner regarding the division of their jointly owned medical schools in the Caribbean.

The applicant sought the appointment of a monitor, an injunction preventing the respondent from operating a competing medical school, and damages for oppression and breach of fiduciary duty.

The court found it had jurisdiction as the respondent waived the arbitration clause by participating in the litigation.

The court appointed a monitor to oversee the complex financial separation, granted an interim injunction restricting the respondent's competing university from poaching staff and students, and converted the application into an action due to significant factual disputes.

The appellants appealed the dismissal of their property claim, spousal support action, and claim for return of a bracelet, with their primary concern being the costs award.

The Court of Appeal upheld the motion judge's decision to strike the statement of claim, finding it an inappropriate method for the claims.

However, the court viewed the appellant's actions as a product of confusion by a self-represented litigant rather than abuse of process.

Consequently, the court reduced the costs award from $7,500 to $2,500 but otherwise dismissed the appeal.

The applicant brought a motion to disqualify the respondents' counsel, Lockyer + Hein LLP, on the basis of a conflict of interest.

The law firm had previously represented the applicant in related litigation concerning the governance of a not-for-profit corporation.

The court found that the current application was sufficiently related to the prior matters, that there was a realistic possibility the law firm possessed relevant confidential information, and that acting against the former client breached the duty of loyalty.

The motion to disqualify counsel was granted.

The plaintiffs sued the defendants for breach of a royalty agreement and promissory note following the winding-up of an investment fund.

The court found the defendants breached the royalty agreement by discontinuing payments after the fund's termination, as the agreement provided for a "proportionate continuation" of royalties if a significant amount of unitholders reinvested in successor funds.

However, the court rejected claims of bad faith and the necessity of an Independent Review Committee (IRC) referral for the winding-up decision.

Damages were awarded based on a modified calculation of the proportionate continuation of royalties, significantly less than sought by the plaintiffs.

The defendant brought a motion to strike the plaintiff's civil action, which sought damages for breach of a separation agreement, including claims for spousal support and restitution for a matrimonial home and personal property.

The court struck the spousal support claim as an abuse of process, ruling it must be brought under the Family Law Act.

The court also struck the property claims, finding that the plaintiff's pre-bankruptcy interests vested in the trustee and were extinguished upon his discharge from bankruptcy.

The action was dismissed with costs awarded to the defendant.

This is a costs endorsement following a judgment released on February 19, 2019, which upheld a Master's ruling dismissing an appellant's motion to compel a non-party respondent to answer undertakings.

The non-party respondent, Eric Grossman, was successful in defending the Master's order and sought costs on a substantial indemnity basis.

The court found that costs follow the event and that the amount sought by the respondent was reasonable, especially considering the appellant's own costs outline.

The court exercised its discretion to slightly reduce the requested amount due to potential non-conformity of the offer to settle with Rule 49.

The appellant was ordered to pay costs to the non-party respondent.

The appellant appealed a Master's decision that declined to enforce undertakings given by a non-party deponent during an examination in aid of execution.

The Master had found that the appellant breached the common law implied undertaking rule by using the deponent's evidence to commence a new fraudulent conveyance action against him.

The Superior Court upheld the Master's decision, finding no error in the Master's exercise of discretion to refuse to compel answers to undertakings, particularly given the collateral use of the evidence and the potential for abuse of process.

The court noted that even if the initial examination was voluntary, compelling answers to undertakings would make the evidence court-ordered and thus subject to the implied undertaking rule.

The plaintiff sought to compel answers to undertakings from non-party Eric Grossman and Mass Fidelity Inc., and to compel non-party David Donahue to attend an examination in aid of execution to enforce a judgment against Mass Fidelity Inc. The court dismissed the motion to compel Grossman's undertakings, finding the plaintiff breached the implied undertaking rule by using examination evidence to commence a new action without leave.

The motion to compel Mass Fidelity Inc. to answer Grossman's undertakings was dismissed as Grossman was not an officer or director.

The motion to compel Donahue's attendance was dismissed because the plaintiff had not yet examined the judgment debtor, Mass Fidelity Inc., or its principal, Neil D'Souza, thereby failing to exhaust all available means before seeking to examine a stranger to the litigation.

The plaintiff, a travel wholesaler, sought summary judgment against the defendant travel agency for unpaid airline tickets totaling $312,964.10, which were charged back after fraudulent credit card payments.

The defendant argued it was a "middleman" or agent of the plaintiff and not liable.

The court found a direct contractual relationship between the plaintiff as a wholesale seller and the defendant as its customer, making the defendant responsible for payment.

The court rejected the agency argument due to lack of evidence of consent, control, or authority to affect the principal's legal position.

Judgment was awarded to the plaintiff.