Neal H. Roth

This appeal concerned the application of s. 5(1)(a)(iv) of the Limitations Act, 2002, specifically when the respondent knew that a proceeding would be an appropriate means to seek a remedy for unpaid invoices.

The appellant, a condominium corporation, argued the action was time-barred, asserting the trial judge erred in applying discoverability principles and finding a running account.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that the limitation period began when the respondent was informed the condominium corporation was not obligated to pay invoices, rather than earlier.

The court upheld the running account finding and the application of discoverability principles, noting the defendant's assurances delayed the plaintiff's understanding of the need for litigation.

The client brought a motion to oppose the confirmation of a Report and Certificate of Assessment regarding her former solicitor's account.

The client, who was self-represented at the assessment hearing, argued she was denied natural justice because the Hearings Officer did not allow her to make closing submissions.

The Superior Court of Justice agreed, finding that the Hearings Officer failed to assist the self-represented client and explicitly prevented her from making submissions on the ultimate issue, thereby violating the audi alteram partem rule.

The Report and Certificate of Assessment, along with related enforcement mechanisms, were set aside, and the matter was remitted for a new hearing before a different Hearings Officer.

The applicant sought a declaration that a 1991 default judgment against him was discharged by his bankruptcy and absolute discharge later that same year.

The respondent argued the debt survived under s. 178(1)(d) of the Bankruptcy and Insolvency Act because it allegedly arose from misappropriation of trust funds under the Construction Lien Act.

The court held that the default judgment, obtained from the registrar on unpaid invoices, did not incorporate a finding of breach of trust and that the pleadings and deemed admissions were insufficient to establish misappropriation.

The court also declined to vary or amend the judgment under Rules 19.08 or 59.06 or order a trial of the issue, citing delay and prejudice caused by the loss of records and witnesses over more than two decades.

The court declared that the debt was discharged by the applicant’s bankruptcy.

The plaintiffs, judgment creditors of the defendant Sandy DiFlorio, brought a motion for leave to issue a certificate of pending litigation against a property owned by Sandy's son.

The plaintiffs alleged that a $300,000 mortgage advance from Sandy to his son was a fraudulent conveyance designed to defeat creditors.

The court applied the criteria under section 103(6) of the Courts of Justice Act and found the plaintiffs had a reasonable claim to an interest in the land.

The motion for a certificate of pending litigation was granted.

A secondary motion to strike a statement of defence for unpaid costs was dismissed with leave to renew if costs remained unpaid.

Following earlier reasons dismissing competing motions relating to enforcement of an alleged settlement agreement and interlocutory relief in a corporate dispute, the court was asked to determine costs.

The moving party sought substantial costs relying on a prior offer to settle and alleged litigation conduct by another respondent.

The court held that neither side achieved meaningful success because the substantive dispute, including enforceability of the settlement agreement, would be determined at trial after the proceeding was converted into an action.

Given the largely technical successes and the likelihood that ultimate success would only be determined at trial, the court ordered that costs of the motions be costs in the cause.

No costs were awarded with respect to the parties’ competing claims for costs.

A motion was brought to enforce a settlement agreement under which a shareholder allegedly agreed to sell his one‑third interest in a corporation to the other shareholders.

The moving party sought summary enforcement of the settlement.

The responding party argued the settlement should not be enforced due to alleged fraudulent misrepresentations regarding the corporation’s financial condition and tenancy prospects.

The court held that a motion to enforce a settlement applies the same test as summary judgment and found that numerous genuine issues of fact required a trial.

The motion to enforce the settlement was dismissed and the original application was converted into an action to allow the disputed issues to proceed to trial.