Nicholas C. Tibollo

The defendants brought a motion seeking to dismiss the action for delay and to discharge a construction lien and certificate of action, arguing the lien was registered out of time.

The court dismissed the motion to dismiss for delay, finding the delay was not inordinate, inexcusable, or intentional, and did not cause prejudice.

The court also dismissed the motion to discharge the lien, finding a genuine issue for trial regarding the date the contract was abandoned, which was crucial for determining the timeliness of the lien registration.

Costs were awarded to the plaintiff.

The appellants appealed the motion judge’s dismissal of two actions and an application via summary judgment.

The motion judge had found the proceedings to be an abuse of process, that the claims had been previously released, and that they were barred by statutory limitation periods.

The Court of Appeal upheld the motion judge's decision, finding no errors in his assessment that there was no evidence of fraud tainting prior settlements or releases, and that the claims were indeed barred by abuse of process, releases, and limitation periods.

The court affirmed that summary judgment was an appropriate tool for addressing these threshold issues.

The appellants, granddaughters of the deceased Rosa Galvano, appealed a trial judgment awarding the respondent, Nellie Galvano (the deceased's daughter), $273,039.54 from the estate for personal care provided to Rosa from December 2007 to February 2012.

The appellants raised three grounds of appeal: (1) that the respondent should pay occupation rent for remaining in the house after the six-month period specified in the will and that such rent should be set off against the care award; (2) that the trial judge erred in allocating all occupancy costs to Rosa's care in the final five years rather than maintaining the prior cost-sharing arrangement; and (3) that the estate was owed unaccounted income of approximately $5,000.

The Court of Appeal dismissed all grounds of appeal, upholding the trial judge's reasoning and discretionary decisions.

The plaintiff supplier claimed damages for unpaid goods against the individual defendants, arguing they were personally liable as the existence of their corporation was undisclosed.

The defendants argued the orders were placed on behalf of their corporation, which had been placed in receivership.

The court dismissed the action, finding that the plaintiff was aware the orders were made on behalf of the corporation, given the long history of payments from the corporate bank account and the prominent display of the corporation's registered business name.

This is a costs endorsement following a failed partial summary judgment motion brought by the defendants.

The plaintiff, One-Way Drywall Inc., sought costs on a substantial indemnity basis.

The court found that the defendants acted unreasonably in bringing their summary judgment motion, which was described as "audacious" and a "tactical maneuver" that delayed justice.

Applying Rule 20.06 of the Rules of Civil Procedure, the court awarded One-Way Drywall Inc. costs of $33,340.65, all inclusive, on a substantial indemnity basis, finding the amount fair and reasonable.

The defendants brought a motion for summary judgment or to strike the plaintiff's breach of trust claim under the Construction Lien Act.

The defendants argued the claim was moot because they had placed funds equal to the plaintiff's original claim in their lawyer's trust account.

The court dismissed the motion, finding that the breach of trust claim had substantive legal value independent of the breach of contract claim, particularly because a judgment for breach of trust would likely survive a potential bankruptcy under section 178(1)(d) of the Bankruptcy and Insolvency Act.

The defendants brought a motion for security for costs under Rule 56.01(e), arguing the plaintiff was an undischarged bankrupt bringing a frivolous claim.

The plaintiff, who had been an undischarged bankrupt for over 40 years, claimed he was owed compensation for acting as Chief Executive Officer of the defendants' business.

The court found that while the plaintiff had insufficient assets, the claim was not frivolous and vexatious as he had worked for years without a salary.

The motion for security for costs was dismissed, with no costs awarded due to the plaintiff's failure to provide full financial disclosure.

The plaintiff creditor sought a declaration that a mortgage registered in favour of a third party constituted a fraudulent conveyance under s. 2 of the Fraudulent Conveyances Act.

The mortgage had been granted after the plaintiff had commenced legal proceedings and purportedly secured an alleged pre‑existing debt.

The court found the underlying debt was statute‑barred under the applicable limitation periods and therefore did not constitute valid consideration for the promissory note or mortgage.

The surrounding circumstances, including the timing of the security and the relationship between the parties, constituted badges of fraud.

The mortgage was declared void as against the plaintiff.

The court addressed a motion concerning the handling of surplus proceeds from the sale of a property subject to litigation.

The parties were ordered to deliver signed directions to the mortgagee instructing that any surplus proceeds remaining after discharge of the mortgage be paid into court to the credit of the action.

The court further ordered that if the mortgagee instead paid the funds directly to either party, those parties must pay the surplus received into court.

The order was made without prejudice to any future motion seeking payment of funds out of court, and the court approved a consent litigation timetable.