Mauro Marchioni

The plaintiff and defendant, adjoining landowners, disputed the existence and use of a right of way over a laneway between their properties.

The plaintiff sought to rectify the parcel register to show its right of way, while the defendant claimed the right of way had expired, been abandoned, or was restricted.

The court found that the plaintiff had a valid right of way that had not expired or been abandoned, and ordered the rectification of the title.

However, the court restricted the plaintiff's use of the right of way to pedestrian access only, finding that vehicular access was unsafe and not viable.

The plaintiff's claim for damages for lost rents and profits was dismissed for lack of proof.

The Plaintiffs sought leave under Rule 39.02(2) to file a supplementary affidavit in response to the Defendants' reliance on the Limitations Act and tolling provisions, which the Plaintiffs claimed were raised unexpectedly after cross-examination.

The court granted leave, finding that the Plaintiffs were genuinely unaware of the disputed matters and that the strategic advocacy of the Defendants did not outweigh the principle of liberal construction of the Rules to achieve a just determination on the merits.

The appellants appealed a trial judgment granting the respondent subcontractor's construction lien claim for unpaid work.

The appellants argued the trial judge provided inadequate reasons for credibility findings and erred by failing to reduce the claim for incomplete work.

The Divisional Court dismissed the appeal, finding the trial judge's reasons were more than sufficient and deferring to the trial judge's factual finding that the work contemplated by the contracts had been completed before the relationship broke down.

The plaintiff, an unpaid trade creditor on a townhouse development project, brought an action against the director of the corporate owner for breach of trust under the Construction Lien Act.

The corporate owner had sold all units but failed to pay the plaintiff in full, and the director subsequently declared personal bankruptcy.

The court dismissed the action, finding that the corporate owner was not a 'contractor' under section 8 of the Act, and therefore no trust funds existed.

Consequently, the director could not be held personally liable under section 13, and there was no evidence of dishonesty to prevent the release of claims through his bankruptcy discharge.

The sureties argued that the court lacked jurisdiction to proceed with a bail forfeiture hearing because the certificate of default was improperly completed under s. 770(1) of the Criminal Code.

The court rejected the argument, holding that strict formal compliance with Form 33 is not required where the certificate adequately signals the default and the surrounding record clarifies the circumstances.

The certificate may be amplified by transcripts and other evidence at the forfeiture hearing.

The purpose of the document is to alert the sureties to the alleged default and trigger the hearing process, not to function as a fully particularized pleading.

Clerical imperfections in completing the certificate do not deprive the court of jurisdiction.

The appellant cashed a bank draft for a mortgagor who turned out to be a fraudster.

The appellant sued the mortgagee and the solicitor who drew the draft.

The trial judge dismissed the claims.

On appeal, the appellant argued the trial judge erred in refusing to allow an amendment to the pleadings after closing arguments, and in failing to recognize a new duty of care owed by the solicitor to the appellant.

The Court of Appeal dismissed the appeal, finding no error in the discretionary refusal to amend pleadings and affirming that no new duty of care should be recognized in the context of bills of exchange.

The moving defendants sought to set aside a Mareva injunction freezing their assets in a civil fraud action involving alleged fraudulent factoring transactions worth approximately $6.5 million.

The court considered whether the plaintiff continued to demonstrate a strong prima facie case of fraud and a real risk of asset dissipation.

Evidence showed that the moving defendants’ companies received substantial funds from entities involved in the fraud, that explanations for the transactions were unsupported by documentation, and that the alleged sale of a business appeared suspicious.

The court also noted conduct inconsistent with the injunction, including the use of undisclosed bank accounts.

The court held that the plaintiff continued to meet the requirements for a Mareva injunction.

The appellant appealed a summary judgment dismissing her claim to reverse a 1988 conveyance on the grounds of fraud.

The Court of Appeal upheld the motion judge's finding that the appellant's execution of a 1996 quit claim deed reflected her intention to show true ownership, rendering the claim against the 1988 conveyance bound to fail.

Furthermore, any claim for damages was barred by the two-year limitation period, as the appellant discovered the alleged fraud in 2004, and obtaining corroborating expert evidence later did not delay discoverability.

The appeal was dismissed with costs.

A cheque‑cashing company sought to recover losses arising from a fraudulent mortgage scheme and the negotiation of a bank draft bearing a forged endorsement.

The plaintiff alleged negligence and fraud against multiple parties involved in the mortgage transaction, including the property owner, a lawyer, a lender, and a relative of the homeowners.

The court found that the homeowners were not involved in the fraud and dismissed claims against them and other defendants, including the lawyer and lender.

The court declined to recognize a novel duty of care owed by the drawer of a bank draft to a subsequent negotiator and held that the plaintiff’s loss arose from the strict liability tort of conversion when the draft with a forged endorsement was negotiated.

Liability was established only against the relative who participated in the mortgage fraud.

The plaintiff brought a motion for summary judgment.

Four days before the hearing, the defendant delivered a detailed responding affidavit alleging accounting irregularities.

The plaintiff sought an adjournment to deliver reply evidence and cross-examine the affiant.

The defendant opposed, arguing Rule 20 does not permit reply evidence by a moving party.

The court held that the moving party in a summary judgment motion may deliver reply evidence to ensure the court can gain a full appreciation of the facts.

The adjournment was granted, leave to file reply evidence was given, and the defendant was ordered to pay costs thrown away.

In a costs endorsement following earlier proceedings, the court reviewed written submissions from the plaintiff regarding costs and interest.

The responding defendants filed no materials and did not respond to correspondence from the court.

The court determined that the plaintiff had incorrectly calculated prejudgment interest by using post‑judgment quarterly rates.

The plaintiff was directed to resubmit corrected prejudgment interest calculations within 21 days, after which the court would provide reasons on costs and interest.

The plaintiff brought an action against the defendants for the monetary value of a 5% ownership interest in a radio station and for the return of capital injections she made to the station.

The defendants argued she lacked standing because the funds were advanced via corporate cheques from her companies.

The court rejected this defence, finding the defendants knew they were dealing with her personally.

The court awarded the plaintiff $83,915.75 against the corporate defendant.

The corporate defendant's cross-claim against the former owner for indemnity was granted.

Claims against the individual defendants were dismissed.

The plaintiff sought indemnification for deposit refunds paid to purchasers after a registered home builder entered agreements to construct homes despite lacking a valid registration under the Ontario New Home Warranties Plan Act.

The court found the builder fundamentally breached twenty-two Agreements of Purchase and Sale by contracting without legal capacity to construct the homes.

As a result, purchasers were entitled to statutory deposit refunds under s. 14 of the Act.

The court rejected arguments that certain payments were loans rather than deposits and held that the indemnitor’s personal indemnity obligation was not reduced by a separate surety bond.

Judgment was granted for the refunded deposits, administrative fees, and statutory interest.

Following a nine‑day trial concerning a commercial tenancy dispute and a counterclaim for damages arising from the landlord’s termination of the tenancy and demolition of the building, the successful tenant sought costs exceeding $185,000.

The landlord argued it should instead receive costs or that no costs be awarded, citing the tenant’s failure to pay rent as ordered, allegations of perjury, and late disclosure of evidence.

The court held that the general principle that costs follow the event applied, as none of the landlord’s objections justified departing from that rule.

However, the court found the tenant’s litigation tactics—particularly its refusal to pay rent despite opportunities to resolve the dispute and regain the premises—warranted a reduction in the costs claimed.

Costs were therefore reduced by approximately one‑third.

A commercial landlord‑tenant dispute arose after the landlord halted renovations at nightclub premises and later began demolition while litigation over an alleged lease breach was pending.

Earlier proceedings determined the tenant had not breached the lease and that the landlord had unreasonably withheld consent to an assignment.

At this damages trial, the court considered whether the landlord was liable for losses during a seven‑month delay period and whether demolition prior to termination established liability for the remainder of the lease term.

The court found the landlord wrongfully expelled the tenant and commenced demolition before termination, thereby destroying the leased premises.

Damages were awarded for the seven‑month period and for the balance of the lease term, but the court declined to award damages for equipment loss due to insufficient proof and the tenant’s failure to mitigate.

The respondent supplier manufactured custom doors for the appellant subcontractor, who failed to pay.

The supplier claimed breach of trust under s. 8(1) of the Construction Lien Act against the subcontractor and its principals.

The trial judge dismissed the trust claim because the supplier did not know the specific improvements where the doors were installed.

The Divisional Court allowed the appeal.

The Court of Appeal dismissed the appellants' appeal, holding that s. 8(1) does not require a supplier to intend that materials be incorporated into a known and specific improvement at the time of supply.

A link to the improvement is sufficient, and in this case, the link was established because the subcontractor deliberately frustrated the supplier's attempts to trace the materials.

The appellants appealed the trial judge's assessment of damages and dismissal of claims regarding a fraudulent kick-back scheme perpetrated by two officers of the appellant company and its suppliers.

The Court of Appeal found the trial judge erred in deducting advances made by the officers from the damages awarded for secret commissions, as the officers had no authority to borrow money from the bank to repay themselves.

The damages against the officers and their company were increased to $73,641.45.

The court also set aside a counterclaim judgment in favour of a supplier, finding he had already been fully paid.

The remainder of the appeal, including claims against the bank for unauthorized withdrawals and altered documents, and claims for punitive damages, was dismissed.

The appellant appealed a committal order for extradition to the United States.

He argued the extradition judge erred in accepting his counsel's waiver of submissions and concession of the case, and that appellate delay affected the fairness of the proceedings.

The Court of Appeal dismissed the appeal, finding the judge was entitled to accept counsel's position, the evidence for committal was overwhelming, and the appellate delay caused no prejudice and was partly attributable to the appellant.

The appellant supplier appealed the dismissal of its breach of trust claim against the individual directors and an employee of a defunct contractor under s. 8 of the Construction Lien Act.

The trial judge had dismissed the claim, relying on a previous decision to hold that the supplier must intend the materials to be used for a known and identified improvement.

The Divisional Court allowed the appeal, distinguishing the previous decision and holding that the plain language of the Act does not require such intent.

The Court found the directors and the employee who had effective control of accounting jointly and severally liable for the breach of trust.

The appellant appealed a judgment finding it had trespassed by appropriating 210 square metres of the respondents' land to construct a berm for a Tim Hortons.

The trial judge ordered an injunction to remove the encroachment and directed a trial on damages.

The Court of Appeal dismissed the appeal, finding no error in the trespass finding or the injunction, noting the appellant offered no evidence that removing the encroachment would be oppressive.