Joseph M. Fragomeni

The respondent in an application for judicial review regarding autism funding brought a motion to strike the applicant's affidavits and dismiss the application due to the litigation guardian's failure to attend cross-examination.

The court declined to strike the affidavits or dismiss the application, finding that the filing of a Certificate of Perfection did not bar cross-examination, and instead ordered the litigation guardian to attend.

The court deferred the respondent's alternative requests to strike portions of the affidavits and to dismiss the application for mootness to the Divisional Court panel hearing the main application.

The court also awarded costs to the respondent for an unsuccessful recusal motion brought by the applicant.

The respondent, ErinoakKids, brought a motion seeking to strike affidavits, dismiss the application for judicial review due to the applicant's litigation guardian's failure to attend cross-examination, or compel cross-examination.

The motion also addressed the mootness of the underlying judicial review application due to recent policy changes in autism funding eligibility.

The court ordered the litigation guardian to attend cross-examination, reserved the issues of striking affidavits and mootness to the Divisional Court, and awarded costs to ErinoakKids for an unnecessary recusal motion brought by the applicant.

The appellant appealed a Small Claims Court decision awarding the respondent real estate brokerage $10,750 in lost commission for breach of a buyer representation agreement.

On appeal, the appellant argued he should only be liable for half the commission because his wife also signed the agreement of purchase and sale for the new property.

The Divisional Court dismissed the appeal, finding that this argument was not raised at trial, there was no evidence the wife signed the agreement, and the trial judge made no palpable and overriding error in finding the appellant liable for the full amount.

The plaintiff successfully defended two summary judgment motions brought by the defendants, The City of Mississauga and Peel Condominium Corporation #89.

The plaintiff sought costs on a partial indemnity basis.

The defendants argued against the costs, citing a last-minute change in the plaintiff's discovery evidence and excessive hours billed by plaintiff's counsel.

The court found the plaintiff fully successful and entitled to costs, dismissing the defendants' arguments regarding the plaintiff's testimony.

While acknowledging the complexity, the court found the total hours billed by two counsel to be excessive.

The court fixed costs at $8,000 all-inclusive against each defendant, applying Rule 57.01(1) and principles of fairness and reasonableness in costs awards.

This endorsement concerns the costs of a motion where the defendants were entirely successful.

The defendants sought $3,938.05, but their bill of costs lacked time dockets, preventing the court from assessing potential duplication of effort by two counsel.

The plaintiff proposed paying $2,500.

The court found the plaintiff's proposed amount reasonable given the circumstances and the lack of detailed dockets from the defendants.

The appellant wife appealed a temporary order from the Ontario Court of Justice that refused to make a final order based on the parties' consent.

The lower court judge had declined to sign the final order due to serious allegations by the respondent husband of duress and fraudulent misrepresentation in obtaining the consent, and the need for the wife to file responding material.

The Superior Court dismissed the appeal, affirming the lower court's decision not to sign the final order and its directions for the matter to proceed in the Ontario Court of Justice to determine the consent's validity.

The court also upheld the admission of fresh evidence (email threads) on appeal, applying the R. v. Palmer test, finding it relevant to the service issue.

The defendants, the City of Mississauga and Peel Condominium Corporation #89 (PCC89), brought motions for summary judgment to dismiss the plaintiff's action for injuries sustained in a trip and fall on a municipal boulevard.

The City argued the boulevard was in reasonable repair or that it lacked knowledge of the non-repair and took reasonable steps.

PCC89 argued it was not an occupier of the municipal property and had no liability.

The plaintiff contended both defendants owed a duty of care and that genuine issues for trial existed regarding the hole's size, the defendants' occupier status, and the reasonableness of their inspection policies.

The court dismissed both summary judgment motions, finding that there were genuine issues requiring a trial, including the actual size of the hole, the extent of PCC89's maintenance and control over the boulevard, and the reasonableness of the City's inspection policy.

The court reviewed lengthy costs submissions following an earlier endorsement that converted an application into an action, necessitating a trial due to serious allegations and contentious evidence.

The court determined that the costs of the two attendances before it ought to be reserved to the trial judge, as a proper adjudication of the merits and credibility assessment required a full trial.

The plaintiff's motion was dismissed, leading to this costs endorsement.

The defendants, Kiewit Alarie A Partnership and Electrical Power Systems Construction Association, sought costs.

The court awarded costs of $4,000 to KAP and $2,000 to EPSCA, all inclusive, payable within 30 days.

The court rejected the plaintiff's arguments for no costs or delayed payment, finding the underlying motion to be without legal foundation, premature, and an abuse of process, and that it unnecessarily delayed proceedings.

The defendants brought a motion seeking further discovery, production of documents, and an adjournment of the trial, citing a substantial change in the plaintiff's family circumstances impacting future care costs.

The court granted leave for the motion and ordered the plaintiff to attend a further examination for discovery, limited to three hours and focused on specific questions regarding his wife.

However, the requests for a further affidavit of documents and an adjournment of the trial were dismissed.

Costs were reserved to the trial judge.

The court converted an application into a trial due to serious allegations of misappropriation of estate funds and credibility issues that could not be resolved on affidavit evidence.

The respondent Estate Trustee was ordered to pay $400,000 into court and restricted from taking further steps as Estate Trustee without consent or court order, pending the trial.

The plaintiff sought an order staying a Workplace Safety and Insurance Appeals Tribunal (WSIAT) application and a declaration that the defendants were estopped from bringing it.

The defendants had pleaded that the action was statute-barred under the Workplace Safety and Insurance Act, 1997, and had initiated a WSIAT Right to Sue Application.

The plaintiff argued that the defendants had attorned to the Superior Court's jurisdiction by consenting to a pre-trial conference date.

The court dismissed the plaintiff's motion, finding that the WSIAT has exclusive jurisdiction to determine the right to sue issue and that the defendants had not waived their right to proceed with the WSIAT hearing.

The Plaintiff brought a motion to strike supplementary affidavit evidence filed by the Responding Defendants in their summary judgment motion.

The Plaintiff argued that the supplementary affidavits were improper under the Rules of Civil Procedure, specifically Rule 39.02, as they were filed after a Rule 39.03 examination had commenced.

The Defendants contended that Rule 39.02 was not violated because the affidavits were not filed after a cross-examination on the Plaintiff's affidavit, and a Rule 39.03 examination is a form of primary evidence to which reply affidavits are permissible.

The court accepted the Defendants' position, finding that a Rule 39.03 examination is distinct from a Rule 39.02 cross-examination and does not preclude the filing of reply affidavits.

The Plaintiff's motion was dismissed.

This is a sentence appeal concerning a three-year driving prohibition imposed for dangerous driving.

The appellant argued that the sentencing judge failed to provide sufficient reasons and that the prohibition was excessive and disproportionate.

The appellate court found that the sentencing judge erred by not providing explicit reasons for imposing the maximum prohibition, especially given the appellant's status as a first offender and single father, and by over-emphasizing denunciation without sufficient consideration of individual circumstances.

The court varied the driving prohibition from three years to two years.

The applicant wife sought costs after successfully defending a motion brought by the respondent husband, which was dismissed due to his failure to file an Answer and lack of evidentiary foundation.

The court, applying Rule 24(1) of the Family Law Rules, found the wife entitled to costs.

While she sought $5,821.93, the court fixed costs at an all-inclusive sum of $3,000, considering the reasonableness for the unsuccessful party to pay, rather than the actual costs incurred by the successful litigant.

The husband brought a motion to change a final order, seeking to terminate spousal support, wipe out arrears, regain control of his life insurance policy, and remove the wife from his health benefits following his retirement from full-time employment.

The court found his retirement constituted a material change in circumstances but declined to terminate support, instead reducing it to $400 per month.

The court fixed the arrears at nil, allowed the husband to regain control of his life insurance upon reimbursing the wife $499.99, and ordered that the wife remain on his health benefits.

The respondent husband brought a motion seeking various deductions from the applicant wife's share of the proceeds from the sale of the matrimonial home, including claims for household contents, an abandoned vehicle, utility bills, and an alleged loan.

The wife argued the husband had no standing to bring the motion as he had failed to file an answer in the proceeding.

The court agreed, finding the husband had no standing under the Family Law Rules.

In the alternative, the court reviewed the merits of the husband's claims and dismissed them entirely due to a lack of evidentiary support.

The net proceeds of the sale were ordered to be divided equally.

The applicant wife sought spousal support, a declaration that her deceased father-in-law's house was a matrimonial home, and a quantum meruit claim against his estate for caregiving services.

The court found the house was not a matrimonial home because the parties separated before the husband inherited it.

The quantum meruit claim was dismissed because the wife had secretly used the father-in-law's funds to support a severe gambling addiction, which more than compensated her.

Spousal support was ordered to continue for two years to allow the wife, who suffered from PTSD after a workplace robbery, to seek full-time employment.

The husband was found in contempt for failing to notify the wife's solicitor of a property sale and fined $2,500.

The plaintiff's representative refused to proceed with an examination for discovery because the defendant brought two corporate representatives, including the president's wife, which the plaintiff found intimidating.

The plaintiff moved for an order limiting the defendant to one representative at the examination.

The court granted the motion, holding that the onus is on the party seeking to have multiple representatives present to establish necessity, which the defendant failed to do.

The applicants brought a motion regarding the respondent estate trustee's alleged failure to comply with a previous court order.

The court found that the respondent's responding affidavit, sworn by a paralegal, did not adequately address the concerns raised by the applicants.

The court ordered the respondent to serve and file a further affidavit with supporting documentary evidence and adjourned the motion to allow for a complete evidentiary record before determining the substantive relief requested.