Mario D. Faieta

The moving party purchaser failed to close on a condominium unit and subsequently moved into the unit without permission.

The responding party vendor obtained a default judgment terminating the agreement, forfeiting the deposits, and granting a writ of possession after the moving party failed to attend the hearing.

The moving party brought a motion to set aside the default judgment under Rule 38.11 of the Rules of Civil Procedure.

The court applied the test for setting aside default judgments and dismissed the motion, finding that while the moving party's failure to attend was a mistake and she moved promptly, she did not have an arguable defence on the merits for failing to tender funds on closing.

The plaintiff brought a motion for summary judgment to discharge a mortgage registered against his property, alleging that the defendant mortgagee never advanced the funds.

The plaintiff also claimed against the lawyer who provided him with independent legal advice, alleging negligence.

The court dismissed the plaintiff's motion for summary judgment regarding the mortgage discharge, finding that the conflicting evidence regarding the advance of funds required a trial.

The court granted the lawyer's motion for summary judgment, dismissing the claim against him on the basis that it was statute-barred under the Limitations Act, 2002, and alternatively, that the lawyer did not breach his duty of care.

The plaintiff, a real estate agent, brought a motion for an interlocutory mandatory injunction against the defendants, a real estate brokerage and its owner, with whom he had entered into a joint venture agreement to open a new branch office.

The plaintiff sought orders directing the release of withheld commissions, appointing him as office manager, and prohibiting the defendants from incurring expenses over $1,000 without his approval.

The court dismissed the motion, finding that the plaintiff failed to establish a strong prima facie case for the release of commissions and failed to demonstrate irreparable harm regarding the alleged breach of the joint venture agreement's expense approval clause.

Following a successful summary judgment motion awarding the plaintiff 20.8 months' reasonable notice for wrongful dismissal, the plaintiff sought substantial indemnity costs of $35,000.

The defendant argued for $15,000 on a partial indemnity basis.

The court considered the plaintiff’s non-compliant offer to settle as a relevant factor under Rule 57.01 but held that the defendant’s conduct did not justify substantial indemnity costs.

The court also rejected using counsel’s unreduced notional hourly rate to inflate the award.

Costs were fixed at $25,000 inclusive of taxes and disbursements.

The plaintiff, a 63-year-old Vice-President of Finance with 17 years of service, brought a motion for summary judgment alleging constructive dismissal after his employer unilaterally imposed a 40 percent salary reduction due to financial difficulties.

The employer argued the reduction was temporary and later alleged just cause for termination.

The court found the salary reduction constituted a constructive dismissal and rejected the after-the-fact allegations of cause.

The plaintiff was awarded 23.75 months' salary in lieu of reasonable notice, reflecting a 24-month notice period reduced by a small contingency factor for mitigation.

The plaintiff brought a defamation action arising from statements posted by the defendant on Facebook and in private messages alleging that the plaintiff was an extortionist and engaged in threatening conduct.

The defendant failed to comply with court orders, had his defence struck, and did not appear at trial.

The court held that the impugned statements satisfied the elements of defamation: they were defamatory, referred to the plaintiff, and were published to third parties.

Considering the seriousness of the allegations, the reach of online publication, and the defendant’s malicious conduct, the court awarded both general and aggravated damages.

The defendants brought a motion for summary judgment dismissing an action arising from a power outage during a wedding reception caused by a severe thunderstorm.

The plaintiffs alleged breach of contract, negligence, and emotional distress, arguing the venue failed to provide backup power and mishandled the event during the outage.

The court held that exclusion clauses in the catering agreement barred liability for damages arising from utility shortages and acts of God.

The court also found the plaintiffs failed to comply with a contractual requirement to provide written notice of any claim within 48 hours and declined to grant relief from forfeiture.

In any event, the plaintiffs failed to establish any breach of contract or negligence.

The plaintiff, a 63-year-old machinist with 26 years of service, was terminated without cause due to restructuring.

The employer provided working notice and severance pay equivalent to approximately four months.

The plaintiff brought a motion for summary judgment seeking 24 months of reasonable notice.

The employer argued the plaintiff failed to mitigate his damages by not using outplacement services and intending to retire.

The court found the plaintiff made reasonable efforts to mitigate and awarded a reasonable notice period of 21 months, reduced to 20.8 months to account for a 1% contingency of finding comparable employment before the end of the notice period.

The plaintiff, a 63-year-old machinist with 26 years of service, was terminated without cause due to restructuring.

He brought a motion for summary judgment seeking 24 months' reasonable notice.

The defendant argued the plaintiff failed to mitigate his damages by not using outplacement services and intending to retire.

The court found the plaintiff made reasonable efforts to mitigate and awarded 21 months' reasonable notice, reduced by a 1% contingency for the likelihood of finding future employment, resulting in a final notice period of 20.8 months.

The applicants sought declarations that an agreement of purchase and sale entered by the mortgagee during a power of sale process was a nullity and requested authorization to discharge several mortgages by payment into court.

The applicants had requested a mortgage discharge statement under s. 22(2) of the Mortgages Act but the mortgagee failed to provide one within the statutory time.

The court held the request constituted a valid demand for a statement and that the mortgagee lacked a reasonable excuse for non-compliance.

As a result, the mortgagee’s enforcement rights were suspended under s. 22(3), rendering the subsequent agreement of purchase and sale ineffective.

The court further ordered that the mortgages be discharged upon payment of the claimed amount into court pursuant to s. 12 of the Mortgages Act.

The defendant moved to vary an earlier order requiring that 50 percent of the proceeds from the sale of a property be held in trust pending determination of the plaintiff’s claimed beneficial interest.

The motion alleged that the plaintiff had failed to make full and frank disclosure when obtaining an earlier certificate of pending litigation on an ex parte basis, including failing to disclose prior sworn statements in earlier family proceedings contradicting his asserted ownership interest.

The court held that the newly discovered evidence would likely have affected the earlier decision and that the evidence could not reasonably have been obtained before the earlier motion.

The court varied the previous order to release the sale proceeds to the defendant.

The defendant’s motion to dismiss the action as frivolous or an abuse of process was adjourned and directed to proceed as a summary judgment motion.

Following a successful motion in a construction lien action to refer the matter to a master, the plaintiff sought costs on a substantial indemnity basis or alternatively on a partial indemnity basis.

The defendant argued that a reduced costs award was appropriate and disputed the plaintiff’s claimed amounts.

The court held that substantial indemnity costs were not justified, noting that the defendant’s conduct in seeking an adjournment due to a religious holiday was not reprehensible and that the plaintiff’s settlement offer was not bettered by the motion result.

Considering potential duplication of legal work and all surrounding circumstances, the court awarded a reduced lump sum costs amount.

The defendant financier moved for summary judgment dismissing a claim for unpaid commissions relating to rooftop solar projects.

The plaintiff alleged contractual entitlement, unjust enrichment, partnership liability, and that the financing corporation was the alter ego of the installer company that had agreed to pay commissions.

The court held there was no agreement between the plaintiff and the moving party, insufficient evidence to pierce the corporate veil, no partnership within the meaning of the Partnerships Act, and no enrichment supporting quantum meruit.

Finding no genuine issue requiring a trial under Rule 20 of the Rules of Civil Procedure, the court dismissed the claim against the moving defendant and awarded costs.

The plaintiff sought to enforce a third mortgage against the defendant's property, claiming it secured loans previously made to the defendant's spouse.

The defendant argued she never consented to securing her spouse's debts and believed the mortgage was intended to replace an existing second mortgage.

The court found the mortgage was intended to replace the second mortgage and that no funds were advanced to the defendant.

The court also applied the defence of non est factum, finding the defendant did not consent to the mortgage's purported purpose.

The plaintiff's action was dismissed, and the mortgage was ordered discharged.

The defendant's counterclaim for slander of title was dismissed.

Following a seven‑day personal injury trial arising from an accident at an amusement park, the plaintiffs obtained damages totalling $304,863.23 and the defendant’s counterclaim for contribution and indemnity against the father was dismissed.

The plaintiffs sought partial indemnity costs exceeding $226,000, while the defendant by counterclaim sought its own costs.

The court applied the principles under s.131 of the Courts of Justice Act and Rules 49 and 57 of the Rules of Civil Procedure, emphasizing proportionality, the principle of indemnity, and the reasonableness of preparation time and disbursements.

The court reduced excessive preparation hours and excluded certain disbursements but accepted the reasonableness of counsel’s hourly rates.

Costs were fixed at amounts considered fair and reasonable in light of the trial result and proportionality considerations.

Following settlement of a mortgage enforcement action, the court determined the appropriate costs payable by the mortgagor to the mortgagee.

The mortgage contained a contractual provision requiring the mortgagor to pay the lender’s legal costs on a solicitor-and-client basis.

The court held that such provisions do not displace the court’s discretion under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

Concerns about an inaccurate discharge statement under the Mortgages Act, block-billed legal accounts, and proportionality justified refusing full indemnity costs.

Applying the principles of fairness and reasonable expectations of the unsuccessful party, the court reduced the claimed $65,831.32 in costs to $25,000 inclusive of taxes and disbursements.

The insurer brought a motion for summary judgment seeking dismissal of an action for indemnity under uninsured and family protection coverage following a motor vehicle accident involving an uninsured driver.

The insurer argued the action was statute‑barred and that the insureds failed to comply with the 30‑day notice requirement under Ontario Regulation 676.

The court held that the two‑year limitation period under the Limitations Act, 2002 applied and began when the insured demanded indemnification from the insurer, consistent with appellate authority governing OPCF 44R claims.

The court further found the insureds’ late notice constituted imperfect compliance and granted relief from forfeiture under the Insurance Act and Courts of Justice Act, noting minimal prejudice to the insurer and significant disparity between the breach and the loss of coverage.

The insurer’s summary judgment motion was dismissed.

The plaintiff brought a motion seeking an order referring a construction lien action to a master for trial under s. 58(1)(a) of the Construction Lien Act.

The action involved a multi‑million dollar lien claim for construction services and a counterclaim alleging delay damages, breach of contract, and damages for registering a grossly excessive lien.

The defendant argued that a referral required evidence of consent or complexity under Rule 54.02 of the Rules of Civil Procedure and that the issues were too complex for a master.

The court held that the statute grants broad discretion to refer construction lien actions to a master and that the historical practice and statutory objectives favour such referrals.

Finding no reason why the objectives of the Act would not be served, the court granted the motion.

The defendant moved to set aside the power of sale of his partially-built cottage and to set aside a default judgment arising from mortgage enforcement proceedings.

The court considered the statutory right of redemption under the Mortgages Act and the defendant’s claim that the property was sold below market value.

The court found that the right of redemption had expired when the agreement of purchase and sale was entered into and that the defendant lacked the ability to redeem the mortgage in any event.

Evidence from the listing agent and appraisals demonstrated that the property received reasonable market exposure and that the sale price was not improvident.

The court also declined to set aside the default judgment, finding the defendant had been personally served, provided no explanation for failing to defend, and had no plausible defence to the mortgage default.

The plaintiff bank brought a motion for summary judgment against the defendants for fraudulent misrepresentation.

The defendants had applied for a line of credit on behalf of their company and signed a personal financial statement indicating they owned their home, which supported their personal guarantee.

After the company went bankrupt, the defendants claimed they held the home in a bare trust for their children and transferred it to their son.

The court found that oral evidence was not required to decide the motion and held that the defendants knowingly or recklessly made a false representation about their beneficial ownership of the home, which induced the bank to grant the line of credit.

Summary judgment was granted in favour of the bank.