Michael Joseph Cupello

The defendant was wholly successful on a motion requiring the plaintiff to post security for costs and sought partial indemnity costs of $14,518.73.

The plaintiff argued for $5,000 to $6,000 but filed its bill of costs late, which the court declined to consider.

The court disallowed time claimed for legal assistants but noted the plaintiff had filed voluminous unnecessary materials, justifying the defendant's time spent reviewing them.

The court fixed costs payable by the plaintiff to the defendant at $10,000 inclusive of HST and disbursements.

The moving party brought a motion for leave to appeal an order dated February 10, 2021.

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

The plaintiff brought a motion to strike the defendant's pleadings and for directions after the defendant failed to comply with a previous order to allow the recovery of personal property and pay costs.

The court issued detailed directions establishing a protocol for the plaintiff to retrieve its chattels, including the attendance of independent third parties.

The motion to strike was adjourned to allow the defendant to respond, with a warning that further non-compliance would be grounds to strike the pleadings.

The court heard three motions in related civil and family law actions to determine the distribution of $100,000 held by the Accountant of the Superior Court of Justice.

The funds were the remaining net sale proceeds of a property previously owned by the respondent.

The parties disputed the interpretation of the family law Minutes of Settlement regarding the calculation of the applicant's 50% share, specifically concerning add-backs for legal fees and whether the respondent could deduct his civil litigation legal fees.

The court found that only the legal fees attributable to the family law file should be added back and that the respondent was not entitled to deduct his civil litigation fees from the amount subject to division.

The applicant agency sought a temporary supervision order for a child with special needs, alleging neglect and risk of harm by the mother.

The court found insufficient evidence for several of the agency's allegations, including drug use, striking the child, and unreasonable expectations regarding the mother's cooperation with a First Nation community and school pick-ups.

The court granted a temporary supervision order, allowing the child to remain in the mother's care subject to specific conditions, while criticizing the agency's approach.

The court determined the costs of an application to wind-up two corporations and a related action, following years of protracted and bitter litigation.

The applicants were largely successful and sought enhanced costs, including against a non-party shareholder.

The court awarded substantial indemnity costs for several motions due to the respondents' vexatious and obstructive conduct.

The court also awarded costs to a self-represented litigant for time spent performing work ordinarily done by a lawyer.

The non-party shareholder was held jointly and severally liable for a portion of the costs in the action due to her unreasonable refusal of settlement offers.

The mother sought a stay of an interim access order that granted the father unsupervised access to their four-year-old child pending her appeal of that order.

The father had not seen the child for over a year and had a history of mental health issues, though no agency had raised concerns about his parenting ability.

Applying the three-part test for a stay, the court found that the balance of convenience favoured a brief period of supervised access to assist the child's reintegration with the father.

The motion to stay was granted in part, varying the lower court's order to require three supervised visits before the unsupervised access schedule commenced.

This addendum to a March 25, 2020 endorsement clarifies the final judgment amount and provides instructions for costs submissions.

The parties agreed that the correct amount owing, with accrued interest to September 25, 2019, is $284,164.56, in favour of the Defendant.

The addendum also outlines procedures for serving and filing costs submissions via email, including the use of hyperlinks for caselaw references, given the suspension of court operations.

The plaintiff brought an action claiming she overpaid a private mortgage based on an alleged oral agreement to reduce the interest rate from 14% to prime plus 4% upon renewal.

The defendant estate counterclaimed for the outstanding balance at 14% interest and moved for summary judgment.

The court granted summary judgment, finding the plaintiff's claim was barred by the Statute of Frauds as there was no written evidence of the alleged oral agreement.

The court also held that the doctrine of part performance did not apply because the plaintiff's continued mortgage payments were not unequivocally referable to the alleged oral agreement.

The plaintiff's action was dismissed, and judgment was granted on the counterclaim.

The defendant brought unsuccessful motions for a writ of possession and interim preservation of property.

The plaintiff sought costs of the motions on a partial indemnity basis.

The court fixed the plaintiff's partial indemnity costs at $4,709.73 but ordered that they be payable in the cause, as the issue of possession was the central issue to be determined at trial.

The plaintiff brought a motion for the recovery of personal property from the defendant following a dispute over an oral lease agreement.

The plaintiff alleged illegal distraint after the defendant changed locks and began using the plaintiff's chattels.

The court found that the defendant's actions constituted illegal distraint as the landlord-tenant relationship had terminated upon the changing of locks, thereby precluding the remedy of distraint.

The motion was granted, ordering the recovery of the plaintiff's personal property and fixing costs.

The defendant, John Harold White, brought a motion for leave to issue a writ of possession or, alternatively, an interim order for the preservation and custody of a property.

White was the registered owner, but the plaintiff, Yvan Gauthier, was in possession following an oral agreement to purchase the property, having paid $40,000.

A dispute arose regarding the total purchase price, with Gauthier claiming it was $40,000 (already paid) and White claiming it was $80,000.

The court dismissed both requests.

It held that a writ of possession requires an underlying order for possession, which was absent, and that an interlocutory order for possession was not warranted given the serious issue to be tried, the irreparable harm Gauthier would suffer if forced to vacate, and the balance of convenience favouring Gauthier.

The request for a preservation order was also denied, as it was sought to obtain possession for White's personal use, not for the actual preservation of the property.

A motion to change a joint custody order where the respondent sought sole custody and the applicant initially sought sole custody but later withdrew that request, instead challenging whether a material change in circumstances had occurred.

The parties had entered into a Minutes of Settlement providing for joint custody with alternating two-week care periods.

Following deterioration in parental communication and a precipitating event in which the applicant relocated the child to Saskatchewan without the respondent's knowledge, the court found a material change in circumstances.

The court awarded sole custody to the respondent, finding that joint custody was unworkable given the parents' inability to communicate and the applicant's pattern of non-compliance with court orders.

At a status hearing, the court considered whether to dismiss the plaintiffs' action for delay under Rule 48.14(1) of the Rules of Civil Procedure.

The action, which involved a shareholder dispute, had been commenced in 2012 and was inextricably linked to a separate application to wind up the corporations.

The court found that the plaintiffs failed to provide a reasonable explanation for the delay, having made a strategic decision to await the outcome of the application before proceeding with the action.

Finding that the defendants would suffer prejudice if the action proceeded, the court dismissed the action for delay.

The appellant, a biological mother, sought access to her child who was adopted by the appellant's mother and her husband in 2015.

The appellant had consented to the adoption and sought no openness agreement at that time.

The application judge dismissed the application on the basis that the appellant lacked standing under the Children's Law Reform Act.

The Court of Appeal upheld this decision, finding that the appellant failed to establish either of two recognized exceptions to the rule preventing biological parents from accessing adopted children: (1) establishing a relationship with the child after adoption, or (2) receiving assurances of continued contact from the adoptive parents.

The court also found no evidence that permitting the application to proceed would be in the best interests of the child.

The plaintiffs were wholly successful on a motion requiring surplus sale proceeds from the defendant's property to be paid into court.

They sought costs of $20,000 payable from the funds in court, while the defendant argued for $3,000 to $6,000.

The court fixed costs at $12,500 inclusive of disbursements and HST, balancing the indemnity principle with access to justice.

The court declined to order the costs payable from the funds in court, as other parties might have claims against those funds.

The court determined costs following its decision that the applicant, A.R., lacked standing to seek access to her adopted child.

The respondents, M.B. and E.B., sought substantial indemnity costs.

The court considered the factors under Rule 24(11) of the Family Law Rules, including the importance and complexity of issues, parties' behaviour, counsel rates, time spent, and the applicant's limited financial means.

The court found the case not overly complex, noted some unreasonableness in the applicant's conduct, and deemed the respondents' claimed hours excessive.

It disallowed certain disbursements and ultimately awarded the respondents $20,000 for fees plus HST, and $611.22 for disbursements plus HST, significantly less than the amount sought.

A long-time valued employee brought an action for damages for intentional infliction of mental suffering and wrongful dismissal after her employer rehired an executive who had been dismissed 11 years earlier partly because he had sexually harassed the plaintiff.

The trial judge found the plaintiff was constructively dismissed and awarded damages equal to 12 months' pay in lieu of notice plus $100,000 in Honda damages, but dismissed the intentional infliction of mental suffering claim.

On appeal, the Court of Appeal upheld the constructive dismissal finding and Honda damages award, but dismissed the appeal of the intentional infliction of mental suffering claim.

The court held that while the employer's conduct was flagrant and outrageous and resulted in visible and provable illness, the plaintiff failed to establish that the employer knew serious psychological injury was substantially certain to follow from its rehiring decision and offer of accommodation.

The defendant sought costs after successfully moving to discharge a construction lien that the plaintiff had improperly registered.

The plaintiff had registered the lien out of time and in the name of an individual rather than the contracting corporation.

The court found that while the lien was ill-conceived, the plaintiff's conduct was not reprehensible, scandalous, or outrageous, as the defendant did owe the underlying debt for a wheelchair lift.

The court awarded the defendant partial indemnity costs of $4,500, payable only upon the defendant satisfying the $36,537.50 consent judgment owed to the plaintiff.

The Plaintiffs brought a motion under Rule 45.02 of the Rules of Civil Procedure for an order requiring surplus sale proceeds from the Defendant's property to be paid into court, or alternatively, for an interlocutory injunction.

The dispute stemmed from a verbal agreement between the Defendant (father) and Plaintiff Tang (daughter) for the purchase of a property, which the Defendant denied.

The court found that the Plaintiffs had asserted a legal right to the specific fund through proprietary estoppel and unjust enrichment, demonstrating a strong prima facie case.

The court also determined there was a real and significant risk that the Defendant would dissipate the fund, potentially defeating the Plaintiffs' claims.

The motion was granted, ordering the surplus proceeds to be paid into court.