Matthew Kersten

The appellants appealed a motion judge's decision that partially set aside a default judgment against them and imposed substantial indemnity costs, including a personal costs order against their counsel.

The default judgment stemmed from their inability to close on a home purchase agreement, leading to the respondent retaining their down payment and selling the property at a significant loss.

The Court of Appeal allowed the appeal in full, finding that the motion judge erred in her assessment of the appellants' arguable defence, misapplied principles regarding promptness and prejudice, and made palpable and overriding factual errors.

The personal costs order against counsel was set aside due to a breach of procedural fairness and factual errors.

The Court ordered the default judgment and noting in default to be set aside entirely, allowing the appellants to file a full statement of defence and counterclaim, and awarded substantial indemnity costs of the appeal to the appellants.

The plaintiff brought an undertakings and refusals motion seeking production of documents relating to a disputed profit-sharing agreement for a construction project.

The defendants argued the documents were irrelevant as the agreement did not cover that project and sought to bifurcate production until entitlement was proven.

The court found the documents relevant to determining both the existence and quantum of the alleged profit-sharing agreement and declined to bifurcate production.

The court ordered production of the specific items refused at the examination for discovery.

This decision addresses two motions: a motion by defendant Gaspare Caruso for summary judgment to dismiss the action against him, and a contempt motion brought by other defendants against Robert Bortolon.

The plaintiff, 1947755 Ontario Ltd., claimed Caruso wrongfully withdrew $86,000 from its corporate account.

Caruso argued he was the sole director and shareholder at the time.

The court found that Caruso was the first director of 1947755 Ontario Ltd. and remained a director in February 2017, as the purported shareholder meetings to remove him were null and void due to lack of notice and quorum.

However, the court also found that Caruso was never a shareholder of 1947755 Ontario Ltd. The motion for summary judgment was not granted, but adjourned to a mini-trial to determine who the shareholders were, whether Caruso embezzled funds, and if any breach of duty was ratified.

The contempt motion against Robert Bortolon was dismissed as the evidence did not show beyond a reasonable doubt that he was instrumental in commencing the action in breach of a vexatious litigant order, and the motion to expunge the initial statement of claim was also dismissed.

The defendants brought a motion to disqualify the plaintiff's counsel, Matthew Valitutti and Jeffrey Radnoff, alleging a conflict of interest based on a prior lawyer-client relationship between Mr. Valitutti and the defendant Giuseppe Prizzi.

Mr. Prizzi claimed Mr. Valitutti had provided ongoing legal advice to Mr. Prizzi on business matters, including those related to the plaintiff, in exchange for landscaping services.

Mr. Valitutti denied any such relationship or providing legal advice.

The court, applying the MacDonald Estate v. Martin test, found that the defendants failed to discharge their onus to prove a prior lawyer-client relationship, citing a lack of objective corroborating evidence for Mr. Prizzi's assertions which were forcefully denied by Mr. Valitutti.

The motion to disqualify counsel was dismissed.

The plaintiffs in a defamation action brought a motion for a sealing order and publication ban.

The action arose from social media posts made by the defendant, a family member, following a dispute over funeral attendance.

Applying the test from Sherman Estate, the court dismissed the motion, finding the plaintiffs failed to provide sufficient evidence that court openness posed a serious risk to an important public interest or their biographical core.

The court declined to award costs to the successful defendant because her counsel had previously sent a letter threatening to use the open court principle to embarrass the plaintiffs if they did not abandon their claim.

The appellant law firm appealed the dismissal of its motion for a charging order under the Solicitors Act and the amendment of trial and costs orders under the Family Law Rules.

The Court of Appeal upheld the trial judge's decision, finding no error in the determination that the firm was not "instrumental" in preserving property for a charging order, and that the amendment to secure costs was appropriate under Rule 25(19)(c) to address an inadvertent omission.

The plaintiff, Sapex Canada Inc., brought an urgent motion for a Mareva injunction against the defendants, alleging that the sale of a property by one of the individual defendants, Dieneen Lepp, indicated an attempt to dissipate assets to avoid judgment.

The defendants argued that the action, proceeding under Simplified Procedure, precluded injunctive relief and that the requirements for a Mareva injunction were not met.

The court found it had jurisdiction to grant injunctive relief in Simplified Procedure actions but ultimately dismissed the motion, concluding there was no real and genuine risk that the defendants were dissipating assets for the purpose of avoiding judgment.

The appellant appealed a summary judgment dismissing his fraud action as statute-barred.

He alleged the respondents fraudulently stripped him of his shares in a company in January 2017, but did not commence his action until April 2020.

The Court of Appeal upheld the motion judge's findings that the claim was discoverable by February 2017, noting the appellant's former counsel had asserted belief of fraud at that time.

The Court also upheld the motion judge's discretionary refusal to grant an adjournment and dismissed the appellant's application to adduce fresh evidence.

The moving parties brought a motion for leave to appeal the order of Dunphy J. dated May 13, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed in the amount of $5,000.

Sutherland Law appealed two orders from the Superior Court of Justice: a Directions Order and a Charging Order.

The plaintiff, Pasquale Scetto, moved to quash the appeal of the Directions Order due to Sutherland Law's lack of standing and sought dismissal of the Charging Order appeal, arguing no fund existed for a charging order.

The Court of Appeal granted the motion to quash the appeal of the Directions Order, finding Sutherland Law lacked standing as it was no longer counsel of record and was not a party to the Directions Motion.

Consequently, with the Directions Order standing (which determined the defendant's share of net sale proceeds was $0), the appeal of the Charging Order was dismissed as there was no fund over which a charging order could be made.

Costs were awarded to the plaintiff.

The plaintiff brought a motion for a Certificate of Pending Litigation (CPL) over several properties allegedly purchased with profits from a landscaping business he co-founded with the individual defendant.

The defendants sought an adjournment, which the court denied due to their failure to advance the proceeding or file evidence.

The court found the plaintiff raised a triable issue regarding an interest in land based on claims of partnership breach, oppression, and constructive trust.

Applying the Dhunna criteria, the court concluded the equities favoured granting the CPL to protect the plaintiff's interests.

Metrolinx applied for a warrant to take possession of expropriated lands, while the respondent landlords and tenants applied to postpone possession, arguing Metrolinx failed to make a valid, good-faith offer of compensation under s. 25 of the Expropriations Act.

Metrolinx had offered $1.00 due to alleged environmental contamination but refused to answer questions or provide environmental reports during examinations.

The respondents sought an adjournment to bring a refusals motion before a Master.

The court granted the adjournment, finding the respondents had a reasonable basis to test whether Metrolinx's offer was made in good faith.