Joseph M. Fragomeni

The defendants brought a motion to set aside a default judgment and the noting of default, arguing they were not properly served and lacked notice of the default proceedings and the uncontested trial.

They also asserted an arguable defence on the merits.

The court found the plaintiff failed to meet the onus of establishing proper service and did not follow the "better practice" of notifying the defendants of the default or the uncontested trial.

The court also determined that the defendants had an arguable defence with an "air of reality." The motion was granted, setting aside the default judgment and noting of default, lifting writs of seizure and sale, and granting leave for the defendants to file their Statement of Defence.

The Applicants, maternal grandparents, brought a motion for security for costs of $30,000 against the added party, Deesho Kaur Bains, the paternal grandmother.

Deesho was seeking to set aside a final consent order that required the child, Sareen, to be returned to Ontario from India, and to assert that India was the proper jurisdiction.

The child had been residing in India with Deesho for nearly four years after her father took her there without notice.

The court dismissed the motion for security for costs, emphasizing that in family litigation, the best interests of the child are paramount, and security for costs should only be granted in exceptional circumstances.

The court found Deesho's participation necessary and relevant to the child's best interests.

The applicant landlord sought summary judgment for $152,101.29 in rent arrears, claiming the leased premises were larger than initially stated in the 10-year commercial lease.

The respondents, tenants, argued that the landlord was estopped from making the claim due to prior representations and that the claim was statute-barred.

The court dismissed the landlord's motion, finding that the landlord was estopped from pursuing the retroactive claim for arrears and that the claim was statute-barred, as the landlord had confirmed the initial square footage for over nine years of the lease term and failed to exercise its right to re-measure in a timely and reasonable manner.

The Appellant, Romain Landu, appealed his conviction for assault causing bodily harm.

He raised five grounds of appeal, including that the trial judge erred by reversing the burden of proof on self-defence, misapprehending material evidence, failing to consider significant inconsistencies in the complainant's testimony, applying different standards of scrutiny to the evidence, and concluding without evidence that the appellant was not in shock during a 911 call.

The appeal court dismissed all grounds, finding that the trial judge properly applied the burden of proof, made findings of fact entitled to deference, adequately addressed inconsistencies, and did not engage in uneven scrutiny or stereotypical thinking in assessing credibility.

This endorsement addresses the costs of a prior motion and application where the applicant, Mohamed Khatau (operating as MAK Enterprises), was largely unsuccessful in preventing the respondent, Apra Development Inc., from removing or selling property after failing to vacate premises as per a consent order.

Apra sought full indemnity costs, citing Khatau's breach of the consent order and the motion's lack of merit.

Khatau argued for partial indemnity, asserting his conduct was not "reprehensible, scandalous or outrageous" and that the motion was brought out of genuine concern for his livelihood.

The court awarded partial indemnity costs to Apra, finding Khatau's conduct did not warrant full indemnity, and reduced the requested fees due to potential duplication of counsel services and excessive hours for a non-complicated motion.

This costs endorsement addresses the allocation of legal costs following a comprehensive order by Price J. on October 29, 2018, and subsequent motions heard by Fragomeni J. on April 1 and 8, 2019.

For the October 2018 attendance, where a substantial portion of the order was by agreement, the court determined that each party should bear their own costs.

For the April 2019 motions, which involved a motion to vary a consent order, child support, spousal support, division of matrimonial home proceeds, and health benefits, the court found the results to be mixed.

Despite offers to settle, neither party achieved a significantly more favourable outcome.

Consequently, the court ordered that each party bear their own costs for both sets of proceedings.

The accused, J.D., was charged with three counts of sexual assault against his wife, D.D. The incidents allegedly occurred between January and April 2017.

The defense argued that D.D.'s testimony was not credible or reliable, suggesting a motive to fabricate due to ongoing family law proceedings, and highlighted inconsistencies in her statements.

The Crown argued D.D.'s testimony was credible, supported by an audio recording demonstrating the accused's animus and his admissions regarding alcohol use.

The court found J.D.'s testimony regarding his drinking problematic and inconsistent.

However, due to significant inconsistencies in D.D.'s testimony, particularly regarding the number and details of alleged assaults and "French Vanilla incidents," and a lack of thorough investigation into D.D.'s cell phone, the court was left with a reasonable doubt.

The court could not decide whom to believe and therefore found J.D. not guilty on all three counts.

The applicant mother sought to vary an interim consent order for week-about residency of the children, requesting sole custody and supervised access for the respondent father, citing concerns about his opiate use and inability to co-parent.

She also sought spousal support and child support determinations, medical benefits, and distribution of matrimonial home proceeds.

The court dismissed the mother's motion to vary the parenting schedule, finding no material change in circumstances or compelling evidence to disturb the status quo.

The court imputed the father's income at $50,000 and the mother's at $96,913, ordering the mother to pay the father $679 per month in set-off child support and $300 per month in spousal support.

Other financial issues, including retroactive support and expense reimbursements, were reserved for trial.

The applicant sought an extension of a consent order requiring them to vacate premises and remove property, or alternative relief regarding the sale of their property.

The respondent opposed, seeking to uphold the original order, permission to remove/sell the applicant's property, and compensation for occupation rent and costs.

The court denied the applicant's request for a lengthy extension, finding that the applicant had ample notice and had previously agreed to the vacation date.

However, the court granted a short extension until April 30, 2019, for the applicant to remove property, after which the respondent could remove or sell it, with the applicant remaining liable for occupation rent and removal costs.

The appellant appealed his conviction for impaired driving, raising five grounds: the trial judge's handling of a Charter application, alleged misapprehension of evidence regarding vehicle damage, judicial interventions during cross-examination, the use of the appellant's statements to a breath technician, and the sufficiency of reasons for credibility assessment.

The appeal court found no error in the trial judge's dismissal of the Charter application due to the appellant's procedural failures, nor in the inference of a collision based on witness testimony.

The court also determined that the trial judge's interventions did not create an unfair trial or apprehension of bias, and that the appellant's statements, once introduced by the defence, were available for credibility analysis.

The trial judge's reasons for rejecting the appellant's testimony were deemed sufficient.

The appeal was dismissed, and the appellant was ordered to surrender into custody.

The appellants (plaintiffs) appealed an order from Master Jolley compelling them to provide answers to outstanding undertakings from their examination for discovery and to pay costs.

The grounds of appeal included misapprehension of evidence regarding the undertakings chart, error in not granting an adjournment of the motion, and the order not reflecting the Master's handwritten endorsement.

The court found no palpable or overriding error by Master Jolley, noting the appellants' delay in providing supporting documents for their undertakings and their failure to object to the draft order.

The appeal was dismissed, and the parties were invited to make submissions on costs for the appeal.

This is a costs endorsement following a motion to transfer a Small Claims Court action to the Superior Court of Justice.

The court previously ordered that the Defendants were entitled to costs thrown away from the Small Claims action.

In this endorsement, the court fixed the Defendants' costs thrown away at $4,000 on a partial indemnity basis.

The Plaintiff, who was successful in the transfer motion, was also awarded costs of the transfer motion, fixed at $4,000 on a partial indemnity basis.

The court ordered that these amounts be set off against each other, resulting in no net payment.

The court rejected the Plaintiff's argument for full indemnity costs for the procedural transfer motion, clarifying that such a higher scale for condominium corporations typically applies to collection-related costs after a trial on the merits.

The applicant's application was dismissed, leading to a costs endorsement.

The respondent sought substantial indemnity costs, arguing that her offer to settle (a dismissal) should attract Rule 49 consequences.

The applicant contended that an offer to dismiss does not engage Rule 49 because a dismissal is not a "recovery" of judgment.

The court agreed with the applicant, citing *S. & A. Strasser Ltd. v. Richmond Hill (Town)*, and found that Rule 49 did not apply.

Furthermore, the court determined that the applicant's conduct did not rise to a level warranting substantial indemnity costs under Rule 57.01(1), as per *Iannarella v. Corbett*.

Consequently, costs were fixed on a partial indemnity basis at $20,000.00, all-inclusive, to be paid by the applicant to the respondent.

The court fixed costs following a nine-day construction lien trial where success was mixed.

Northridge Homes Ltd. and sub-trade plaintiffs (CAAJ Construction Inc., 2225043 Ontario Inc., and 2142043 Ontario Inc.) sought substantial costs, while the defendants argued for no costs or significantly reduced amounts due to divided success and proportionality.

The court found that all parties shared blame for the protracted trial and applied the principle of proportionality, noting that costs should be fair and reasonable, not merely a mechanical calculation of hours.

The court awarded Northridge Homes Ltd. $60,000 in total costs and the sub-trade plaintiffs $11,150 in total costs, significantly less than requested.

The applicant sought specific performance of an agreement of purchase and sale (APS) for a unique 1.9-acre property.

The APS was conditional on the seller obtaining Credit Valley Conservation Authority (CVC) permission for "cut and fill" and building permits.

The applicant alleged the respondent failed to act in good faith and take reasonable steps to obtain consent.

The respondent argued she took reasonable steps, incurring significant costs, and terminated the APS when further expenses were deemed unwarranted.

The court found the respondent acted in good faith and dismissed the application, also noting that specific performance would not have been granted due to the applicant's failure to prove the property's uniqueness and the property's subsequent transfer to a third party not involved in the application.

Daniel Currant pleaded guilty to production of cannabis marihuana and possession of cocaine for the purpose of trafficking.

Police seized over 1 kg of cocaine, nearly 4 kg of cutting agent, and 351 cannabis plants.

The court considered aggravating factors, including the large quantity and high purity of cocaine, and mitigating factors such as his guilty plea, lack of prior record, and health issues.

Despite his cocaine addiction, the court found his motivation was financial gain.

The Crown sought 8 years, the defence 4 years.

The court imposed a sentence of six years in a penitentiary, less four months credit for pre-trial custody and restrictive bail conditions, resulting in a total remaining sentence of five years and eight months.

Orders for forfeiture, s. 109 prohibition, and DNA were also issued.

The Respondent husband brought a motion to vary a temporary spousal support order and to seek child support from the Applicant wife.

The court dismissed the motion to vary spousal support, finding that the issue was res judicata as the arguments had been previously considered by Justice Trimble, and in any event, no material change in circumstances had been established.

The court emphasized the high onus required to vary interim orders.

The Applicant wife agreed to pay child support for the two children of the marriage, and an order was issued for $266 per month, without prejudice to future adjustments at trial.

The plaintiffs, minority shareholders, commenced an action against the defendants for declarations and orders related to oppressive conduct, breach of fiduciary duty, and misappropriation of funds from the sale of a pharmacy.

The defendants were noted in default, and the matter proceeded as an undefended trial.

The court found the defendants' conduct to be oppressive and a marked departure from ordinary standards of decent behaviour, supporting an award of punitive damages.

The plaintiffs were granted declarations of shareholding, trust, and fiduciary duty, and awarded their share of the sale proceeds, punitive damages, and costs.

The plaintiffs sought orders for payment of funds into court and a vesting order against the defendants' property (26 Merrittonia Street) to secure potential judgment for breach of contract related to a failed real estate transaction for a different property (14 Annual Circle).

The plaintiffs had also registered a Caution against the Merrittonia property.

The defendants brought a cross-motion to discharge the Caution, declare no plaintiff interest in the property, and seek leave to issue a third-party claim.

The court dismissed the plaintiffs' motion, finding they had no interest in the Merrittonia property to support a Caution or vesting order, and their claim was for damages, not a specific fund.

The court granted the defendants' cross-motion, ordering the discharge of the Caution and granting leave for the third-party claim.

This case involved a dispute between parents (Plaintiffs) and their son (Defendant) regarding financial advances made for a Jeep purchase, a property in Melancthon, and the purchase and renovation of 217 Victoria Street, Shelburne.

The Plaintiffs sought repayment of these funds, asserting they were loans, while the Defendant contended some advances were gifts and claimed compensation for his renovation work on 217 Victoria Street.

The court found that the advances for the Jeep and 217 Victoria Street were repayable loans.

However, it was not satisfied that the funds advanced for the Melancthon property were definitively loans, acknowledging the possibility they were gifts.

The Defendant's claim for renovation work was largely dismissed due to insufficient evidentiary support and lack of certainty in quantification.