Joseph F. Lo Greco

The moving parties sought leave to appeal the decision of Akazaki J. dated August 12, 2024.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties.

The defendant moved to discharge a certificate of pending litigation (CPL) obtained by the plaintiff on an ex parte motion.

The plaintiff claimed a 50% interest in a condominium unit purchased by the defendant, relying on a trust agreement.

The court discharged the CPL, finding that the plaintiff failed to make full and fair disclosure of material facts on the ex parte motion, including the defendant's dispute of the claim and the plaintiff's failure to contribute to expenses.

The court also found the plaintiff failed to prosecute the action with reasonable diligence and that the equities favoured discharging the CPL, as the property was not unique and damages would be an adequate remedy.

The plaintiff brought a motion to compel answers to questions refused during the cross-examination of the defendant and his father on affidavits filed in support of the defendant's pending motion to discharge a certificate of pending litigation.

The court ordered the defendant to produce his current driver's license as it was relevant to an issue of residence raised by the defendant.

However, the court upheld the refusals regarding the defendant's banking and tax records, finding them irrelevant to the discharge motion and overbroad.

The court also upheld a refusal regarding the defendant's reasons for previously acting in person.

The defendant was awarded partial indemnity costs of $8,500.

The Landlord sought summary judgment for unpaid rent and repair costs after the Tenant vacated the leased premises early.

The Tenant argued a verbal agreement reduced rent and denied causing damage.

The court dismissed the claim for repair damages due to insufficient pleading and evidence.

It found a genuine issue requiring a mini-trial regarding the verbally agreed-upon monthly rent, acknowledging that parties can waive "entire agreement" clauses by conduct.

The plaintiff advanced $90,000 to his daughter and son‑in‑law following the sale of his home.

The court held that equity presumes bargains rather than gifts and found the defendant failed to rebut the presumption that the advance was a loan.

However, the court determined that the loan constituted a demand obligation created prior to January 1, 2004, making the former six‑year limitation period under the Limitations Act applicable.

Because the claim was issued more than six years after the date of advancement and there had been no acknowledgment of the debt or payment to extend the limitation period, the claim was statute‑barred.

The action was dismissed and costs were awarded to the defendant.