Nicholas C. Tibollo

The plaintiff sought continuation of a Mareva injunction freezing assets in a civil fraud action alleging an international investment scheme involving silicon germanium transactions.

The defendants opposed continuation of the injunction, sought to expunge FINTRAC materials and a U.S. criminal complaint from the motion record, and alternatively requested that the plaintiff post security for the undertaking as to damages.

The court held that hearsay evidence contained in a U.S. criminal complaint was admissible on a motion under Rule 39.01(4) and that the FINTRAC report was properly disclosed through the RCMP and was both relevant and admissible.

The court found a strong prima facie case of fraud, a risk of dissipation of assets, and no material non‑disclosure.

The Mareva injunction was continued and no order for security was imposed.

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.

The appellant tenant operated a gas bar on premises leased from the respondent landlord.

After discovering a failed underground fuel line, the tenant capped it, terminated the lease, and vacated the premises, leaving the underground tanks and lines behind.

The landlord successfully applied for a declaration that the lease required the tenant to repair the tanks and lines.

On appeal, the Court of Appeal found that the underground tanks and lines were 'trade fixtures' rather than 'improvements' under the lease.

Because the lease's repair obligation applied only to improvements, the tenant had no duty to repair the trade fixtures.

The appeal was allowed and the landlord's application was dismissed.

The appellants appealed a trial judgment granting a mandatory injunction requiring them to remove a retaining wall that encroached on the respondent's adjacent commercial property.

The original encroachment was permitted under a 1973 settlement agreement, which stipulated that consent would be rescinded if further encroachment occurred.

The trial judge found that the wall had moved significantly, rescinding the consent and rendering the encroachment a trespass.

The Court of Appeal upheld the trial judge's findings that the encroachment constituted a trespass, that the appellants had not acquired title by adverse possession because their possession was consensual, and that a mandatory injunction was the appropriate remedy given the significant and ongoing interference with the respondent's property rights.

The appeal was dismissed.

The appellants appealed a trial judgment finding the individual appellant personally liable for invoices related to crane dismantling work.

The trial judge found that the individual appellant contracted verbally with the respondent without disclosing that he was acting as an agent for a corporation.

The Court of Appeal dismissed the appeal, affirming the well-established legal principle that an agent who fails to disclose they are acting in that capacity will be held personally liable.

The applicant First Nations sought judicial review to quash a Notice of Completion of an Environmental Study Report regarding the transfer of the Seaton lands by the Ontario Realty Corporation.

The applicants argued the Crown breached its constitutional and statutory duties to consult them about potential aboriginal burial sites on the lands.

The Divisional Court dismissed the application, finding no constitutional duty to consult because the applicants had surrendered their rights to the lands under the 1923 Williams Treaties.

The court also held that the statutory consultation process under the Environmental Assessment Act was procedurally fair, noting the broad nature of the assessment and the effective involvement of the Founding First Nations Circle.

The appellants appealed a trial judgment finding them liable for the tort of deceit and ordering them to pay damages equivalent to US $7,832,083.00.

The trial judge found that the appellants falsely represented that computer equipment purchased from the respondents was destined for educational ministries in China and Australia in order to obtain special discounted pricing, when in fact the equipment was diverted to the grey market.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions that the appellants made false representations, that the respondents relied on them, and that the deceit caused the respondents' loss.

The appellant law firm appealed a Small Claims Court judgment ordering it to pay $6,000 to the respondent, a former client.

The dispute centered on whether $6,000 from the respondent's settlement funds was properly retained by the appellant to pay her husband's outstanding legal accounts, or whether a subsequent $25,000 payment by the husband was an all-inclusive settlement of his debts.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Deputy Judge's reliance on the credible testimony of the husband's new counsel regarding the all-inclusive nature of the $25,000 settlement.

The appellant appealed two orders of a Master dismissing its action and ordering payment out of court.

The action, which was over seven years old, had been transferred to Case Management after years of dormancy.

The Master found the appellant had repeatedly breached orders regarding security for costs, delivery of a release, and provision of damages calculations and documentation.

The Divisional Court held that the Master did not err in principle or in the exercise of his discretion under Rules 60.12 and 77.10(7) to dismiss the action.

The appeal was dismissed with costs to the respondent on a partial indemnity scale.

The appellants sought to claim a federal sales tax refund belonging to a bankrupt company, relying on assignments made prior to and during the bankruptcy.

The trustee in bankruptcy held the refund and argued the assignments were invalid.

The Court of Appeal held that the tax refund was a 'Crown debt' under the Financial Administration Act, which prohibits the assignment of such debts.

The court also found that the general power of a trustee to sell assets under the Bankruptcy and Insolvency Act does not override this specific prohibition.

The appeal was dismissed.