Michael G. Emery

The parties advised the court in writing that the matter had been settled.

On consent, the court ordered that the appeal be dismissed without costs to either party.

The applicant husband brought a motion under Family Law Rule 12(6) to sever his claim for divorce from the corollary relief sought by the respondent wife.

The respondent opposed the motion, arguing she would be disadvantaged regarding her claims for the return of jewellery and an interest in property.

The court found that the respondent's true motive was to delay the divorce as leverage for her civil claims, which would not be legally disadvantaged by the severance.

The motion to sever the divorce was granted, and the respondent's cross-motion was dismissed.

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 seeking to find the non-party Robert Bortolon in contempt of court, or alternatively, to expunge the initial statement of claim.

The motion for contempt was dismissed.

The alternative motion to expunge the statement of claim, which was opposed by the plaintiff, 1947755 Ontario Ltd., was also dismissed.

The court's decision was based on a combined evidentiary record from this motion and a related summary judgment motion, both addressing the issue of who was in control of the plaintiff corporation as of February 2017.

The plaintiffs, Aurelio and Maria Acquaviva, brought a motion for summary judgment to enforce a mortgage charge against the defendant, Joan Holmes.

Ms. Holmes had defaulted on the charge and raised several defenses, including an alleged oral agreement to renew, a violation of the Interest Act, and a side deal with a mortgage broker involving fraud.

The court granted summary judgment on liability, finding no genuine issue requiring a trial regarding the validity and enforceability of the charge.

However, a trial was ordered to determine the precise amount owing under the charge, including principal and interest, due to mixed funds and unclear accounting.

The court also deferred the decision on possession and costs.

The moving party sought leave to appeal a decision of the Agriculture, Food and Rural Affairs Appeal Tribunal, which found it had no jurisdiction to consider his appeal regarding the classification of his property in the Farm Property Class.

The Divisional Court denied leave to appeal, finding that the moving party failed to follow the mandatory statutory procedure of requesting a reconsideration from the Administrator before appealing.

The court concluded there was no reason to doubt the legal correctness of the Tribunal's decision.

The plaintiff obtained a default judgment against the defendants after a series of procedural irregularities and without notifying the defendants' counsel, despite knowing the defendants were represented.

One of the key defendants subsequently died.

The defendants successfully moved to set aside the default judgment but their motion to dismiss the action for delay was denied.

On appeal, the Divisional Court upheld the setting aside of the default judgment due to the plaintiff's counsel's sharp practice.

The Court allowed the defendants' appeal and dismissed the action for delay, finding the 11-year delay was inordinate, inexcusable, and caused substantial prejudice to the defendants due to the death of the key defendant.

This decision addresses the sentencing of the respondent for contempt of court, following a previous trial judgment that included a finding of contempt related to the equalization of net family property.

The court clarified issues regarding property ownership and equalization payments.

Applying sentencing principles under Rule 60.11(5) of the Rules of Civil Procedure, and considering mitigating factors such as the respondent's employment and family, and the fact that the underlying equalization order had been implemented, the court imposed a fine of $6,500 payable to the Minister of Finance, rather than a custodial sentence.

The defendants brought a motion for directions after adjourning the examination for discovery of the plaintiff, Valentina Medvedeva.

The day before the scheduled examination, the plaintiffs served a lengthy affidavit intended to serve as Valentina's evidence in chief.

The defendants objected, arguing this would allow the plaintiffs to control the narrative and avoid a proper oral discovery.

The court agreed with the defendants, finding that under Rule 31.02, the examining party controls the form of discovery, and oral examinations are the standard.

The court ordered that Valentina submit to a standard oral examination for discovery without the use of the affidavit.

The appellant appealed a final order directing the partition and sale of a jointly owned property under the Partition Act.

The appellant argued the motion judge erred by ordering the sale despite a triable issue regarding a trust claim and by failing to find the respondent's conduct was malicious, vexatious, or oppressive.

The Divisional Court dismissed the appeal, noting the appellant conceded the conduct issue during oral argument.

The court found no error in the motion judge's application of the relevant legal principles, as the appellant failed to establish prejudice arising from the sale.

The appellant appealed a motion judge's order for the partition and sale of a property under the Partition Act.

The appellant argued the motion judge erred by ordering the sale despite a triable issue regarding a trust claim and by failing to find the respondent's conduct was malicious, vexatious, or oppressive.

The Divisional Court dismissed the appeal, finding the respondent's desire to untangle financial affairs was reasonable and the appellant failed to establish prejudice arising from the sale.

The appellant client appealed a motion judge's assessment of her former solicitor's account.

The motion judge had found the assessment officer lacked jurisdiction due to a contingency fee agreement, but relied on the officer's evidentiary record to conduct his own quantum meruit assessment, reducing the fees to $45,000.

The Divisional Court dismissed the appeal, finding no error in the motion judge's reliance on the assessment officer's report or his application of the Cohen factors.

The Court also lifted a sealing order that had been improperly requested.

The applicant employer sought judicial review of an Ontario Labour Relations Board (OLRB) decision upholding an order to pay statutory termination and severance pay to a former employee.

The employee had been terminated for off-duty, intoxicated misconduct involving threats to a co-worker.

The employer argued this constituted 'wilful misconduct' exempting the employee from statutory entitlements.

The Divisional Court applied a reasonableness standard of review and found the OLRB's contextual assessment of the misconduct—considering the employee's 14-year tenure, lack of prior discipline, and intoxication—was reasonable.

The application for judicial review was dismissed.

The plaintiff, Trade Capital Finance Corp., brought a motion to compel the defendant, Carlo De Maria, to make full disclosure and produce documents relating to the operation of The Cash House Inc. and related corporations.

The plaintiff alleged it was defrauded of millions of dollars and that the stolen funds were funneled through these corporations.

The court found that De Maria retained power and control over the documents despite a purported sale of the business.

The court ordered De Maria to serve a further and better affidavit of documents and produce the requested records, subject to specific rulings on individual categories of documents.

The moving parties brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs fixed at $5,000 to the responding parties.

The applicant sought an equalization of net family property, an unequal division of property under s. 5(6) of the Family Law Act, a change to a final order regarding the distribution of home sale proceeds, and a finding of contempt against the respondent.

The court calculated the equalization payment owed to the applicant at $95,181 but dismissed her claim for an unequal division, finding the respondent's conduct did not meet the threshold of unconscionability.

The court granted the motion to change the final order due to the respondent's breach of its terms, and found the respondent in civil contempt for intentionally defying clear court orders regarding property sales and proceeds.

The applicants brought a motion seeking a finding that the respondents, Hanna Gajek and Katarzyna Krol, failed to comply with two prior court orders requiring disclosure of the assets and liabilities of the late Marek Krol's estate.

The court found that Katarzyna Krol had satisfied her disclosure obligations to the best of her ability, as she had no knowledge or possession of relevant documents.

However, the court found that Hanna Gajek had not fully complied with the orders, particularly regarding documents likely kept in a safe and details of joint bank accounts.

The motion was dismissed against Katarzyna Krol and allowed in part against the Estate of Hanna Gajek, with directions for further disclosure.

The appellant tenants appealed decisions of the Landlord and Tenant Board dismissing their motions to set aside eviction orders.

The landlord had obtained the eviction orders ex parte after the tenants signed agreements to terminate their tenancies (N11 forms) under pressure, having been told they had to vacate for renovations without being informed of their statutory rights.

The Divisional Court allowed the appeals, finding the Board Member erred in law by failing to apply the proper test under s. 77(8)(b) of the Residential Tenancies Act, failing to consider all the circumstances, and failing to assess the real substance of the transactions and the landlord's good faith under s. 202.

The eviction orders were set aside and new hearings were ordered.

The plaintiff brought a motion to strike the defendants' jury notice in a motor vehicle accident action, citing delays caused by the COVID-19 pandemic.

The defendants opposed, arguing the plaintiff required leave under Rule 48.04 as the action was already set down for trial, and that the action was not ready for trial due to outstanding undertakings.

The court granted leave, finding the pandemic constituted a substantial and unexpected change in circumstances.

The court conditionally struck the jury notice, ordering that if a jury trial cannot be accommodated during the January 2022 sittings in Brampton, the trial will proceed before a judge alone to avoid undue delay.

The moving party brought a motion for summary judgment to uphold the validity of a marriage contract.

The responding party sought to set aside the contract under section 56(4) of the Family Law Act, alleging non-disclosure of the value of a property, failure to understand the contract, and duress.

The court found that the responding party had independent legal advice, knew of the property's existence, and failed to establish any grounds for setting aside the agreement.

The motion for summary judgment was granted, and the marriage contract was declared valid and enforceable.