Joseph Figliomeni

The plaintiff, a personal services corporation, entered into sales and management agreements with the defendant, a U.S. corporation, to manage its Canadian subsidiary.

The plaintiff's compensation was based on the subsidiary's net profit, calculated in accordance with U.S. GAAP.

The plaintiff sued for breach of contract, alleging the defendant improperly allocated corporate overhead costs to the Canadian subsidiary, thereby artificially reducing the net profit and the plaintiff's compensation.

The court dismissed the action, finding the plaintiff failed to prove on a balance of probabilities that the defendant's allocation of corporate overhead costs was not in accordance with U.S. GAAP.

The court also dismissed additional claims for unpaid invoices and wrongful termination due to lack of evidence.

The moving party, an estate trustee, brought a motion to add her sister as a respondent to two consolidated applications: an application to pass accounts and an application for the removal of the estate trustee.

The sister and her daughter opposed the joinder.

The court found that the sister was an interested party who had demanded an accounting and was a possible beneficiary of the estate.

Applying Rules 5.03 and 9.01 of the Rules of Civil Procedure, the court concluded that the sister was a necessary party whose rights could be affected by the outcome.

The motion was granted, and the sister was ordered to be added as a party to both applications.

The plaintiffs brought a motion to compel production of documents, answers to refused questions, and re-attendance for further examinations of several defendants and a non-party witness following cross-examinations on an affidavit and examinations under Rule 39.03.

The examinations were conducted in the context of a pending motion by the defendant Purchaser Corporations to discharge certificates of pending litigation.

The court granted partial relief, ordering the production of share purchase agreements and answers to specific questions regarding corporate control and share transfers, finding them relevant to the bona fides of the property transactions.

The court dismissed the requests for voluminous due diligence documents as overbroad and declined to order re-attendance for further examinations.

This appeal concerned the interpretation of a will clause granting an option to purchase "the farming business carried on by me." The testator had ceased active farming years prior to her death, instead leasing the land.

The application judge found the farming business had ceased, causing the option to lapse.

The Court of Appeal reversed, holding that the application judge erred by not applying the presumption under s. 22 of the Succession Law Reform Act, which states a will speaks as if made immediately before death.

The Court found that the testator was still carrying on a farming business at the time of her death through leasing the land and declaring farm income, thus the option was valid.

The plaintiffs brought a motion requiring the defendants, as Estate Trustees, to pass the accounts.

After six adjournments, the plaintiffs requested a further deferral to address unanswered questions.

The court declined to prolong the matter, noting the depletion of estate assets, and dismissed the motion on a without prejudice basis.

The plaintiffs also consented to dismiss the claim against one defendant.

The court awarded costs of $5,100 for the dismissed claim and $16,156.27 for the motion to the defendants, payable forthwith by the plaintiffs.

The applicant sought a declaration that a property transferred by the deceased mother to the respondent son was held in a resulting trust for the estate, and an order requiring the respondent to pass accounts.

The court found that the presumption of resulting trust was rebutted by evidence showing the mother intended to gift the property to the respondent, who had lived with and cared for her.

The request to pass accounts was dismissed as statute-barred and unfair due to an eight-year delay, though the respondent was ordered to provide a sworn statement of the deceased's assets at the time of death.

The applicant sought to be appointed as litigation guardian for her 89-year-old grandfather, who suffers from dementia, in order to pursue an application against his former attorney for property for alleged misappropriation of funds.

The respondent opposed the appointment, arguing there was insufficient medical evidence of incapacity.

The court reviewed the uncontroverted evidence, including letters from the attending physician and observations from the care team, and found the grandfather incapable of managing property.

The applicant was appointed as litigation guardian.

This endorsement addresses the issue of costs following a trial where Arctic Spas Oakville Inc. (ASOI) was awarded damages against Blue Falls Manufacturing Ltd. The court awarded ASOI partial indemnity costs of $450,000, all inclusive, from Blue Falls.

The court denied ASOI's claim for substantial indemnity costs, finding the defendants' conduct, while lengthening the proceeding, did not meet the "reprehensible" standard.

The court also rejected Blue Falls' argument that Rule 49.10(2) (offer to settle) applied to limit ASOI's costs, determining that ASOI's recovery at trial, including pre-judgment interest and reasonable costs up to the offer date, exceeded the defendants' all-inclusive offer.

Costs were not awarded between the other plaintiffs and defendants due to evenly divided success.

This endorsement addresses the issue of costs following a summary trial where judgment was granted to the plaintiff against both corporate and personal defendants for $50,000 each, plus interest, under a debenture and personal guarantee respectively.

The plaintiff sought full or substantial indemnity costs, relying on a contractual provision in the guarantee and a prior offer to settle.

The defendants argued the costs were excessive.

The court, exercising its broad discretion under the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, found the plaintiff's costs reasonable and warranted a higher scale due to the defendant's failure to admit a key fact (personal guarantee) that prolonged the trial.

The court awarded the plaintiff $55,000 in costs, inclusive of HST and disbursements.

Following the dismissal of the plaintiff's motion for an injunction, the parties were unable to agree on costs.

The defendants sought substantial indemnity costs of $35,000, citing the plaintiff's uncooperative conduct and failure to produce affiants for cross-examination despite a court-ordered timetable.

The court awarded the defendants their costs on a substantial indemnity scale fixed at $35,000, finding the plaintiff's lack of cooperation glaring.

The court declined to order the plaintiff's principal personally liable for the costs, noting that the defendants' corporate remedies as minority shareholders remained to be decided.

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 applicant brought a guardianship application regarding one of the respondents, which was dismissed.

The respondents sought costs.

The court found no reason to depart from the normal rule that costs follow the event.

The court awarded partial indemnity costs to the respondents, fixing the costs at $56,224.11 for one respondent and $44,000 for the other, payable by the applicant in three instalments.

Two competing applications were brought by family members.

The applicant daughter applied for guardianship over her 90-year-old mother and challenged the validity of her mother's new will, powers of attorney, and the transfer of her home to her other daughter, alleging undue influence and lack of capacity.

The mother applied to remove the applicant daughter as a joint account holder on her investment account.

The applicant daughter moved to consolidate the applications into an action requiring a trial.

The court found that the mother's capacity was the controlling issue and could be decided on the application record without a trial.

Relying on expert psychiatric evidence and the mother's own testimony, the court concluded that the mother had the requisite capacity to manage her property and personal care, grant powers of attorney, make a will, and make an inter vivos gift.

Because the mother had capacity and the impugned instruments were executory, the court declined to direct a trial on the issue of undue influence.

The applicant daughter's application was dismissed, and the mother's application to remove the applicant daughter from the joint account was granted.

In a business divorce arising from the termination of a decade-long hot tub dealership arrangement, the court rejected claims of civil conspiracy, fraudulent misrepresentation, franchise liability, bad faith, and breach of restrictive covenant arising from a shareholder buyout and subsequent supply termination.

The court held that the governing relationship was an indefinite-term dealer agreement carrying an implied obligation of termination on reasonable notice, and that the dealer was not contractually bound to sell the manufacturer’s products exclusively.

Allegations that the dealer fundamentally breached the agreement by selling competing products and filing false warranty claims were not proven.

Applying distributorship reasonable notice principles, the court found that six months’ notice was required and awarded the dealer damages of $565,365 plus pre- and post-judgment interest.

All remaining claims and the counterclaim were dismissed.

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.

Following the dismissal of the applicant's applications to remove the respondent as an estate trustee and compel the closing of a real estate transaction, the court determined costs.

The court found that the applicant's unilateral actions necessitated the litigation and that he should be personally liable for costs, rather than the estate.

The respondent was awarded costs fixed at $15,000 plus disbursements and HST on a partial indemnity basis.

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.