Patrick Di Monte

The appellants appealed a motion judge's decision granting the respondent an extension of time to file an amended statement of claim.

The respondent had brought a motion to vary a previous order under Rule 59.06, but the motion judge granted relief under Rule 3.02(1) without prior notice to the appellants.

The Divisional Court allowed the appeal, finding a breach of procedural fairness because the appellants were denied the opportunity to file evidence of prejudice caused by the delay.

The matter was remitted to a different motion judge.

The appellant challenged refusal to set aside a struck defence and a default judgment imposing trust-based liability for unpaid construction invoices.

The court upheld the motion judge’s findings on delay, credibility, and absence of arguable defence, and confirmed quantum based on deemed admissions under default rules and Construction Act trust obligations.

The moving parties brought a motion for leave to appeal a prior decision.

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

The plaintiff sought to set aside a Registrar's dismissal order dated October 10, 2024, which dismissed the action for delay.

The action arose from a failed agreement of purchase and sale for a property.

The plaintiff alleged breach of contract and sought damages against the defendants.

The court applied the Reid factors test and found that the plaintiff failed to provide satisfactory explanations for the substantial litigation delay spanning over six years.

The court dismissed the motion, finding that the principle of finality outweighed the interest in having the action decided on its merits, particularly given the inordinate delay without adequate explanation.

The applicant, as trustee of her late husband's estate, sought enforcement of a settlement agreement reached in 2020 with the respondents regarding the purchase of her interest in family business assets and real property.

The respondents had paid the settlement amount but refused to execute the Minutes of Settlement and Release and Indemnity, claiming the release provisions would compromise their separate action against their former counsel.

The court found a binding settlement existed and that enforcement was appropriate, granting judgment in accordance with the settlement terms and ordering execution of the documents within seven days.

The court awarded costs on a substantial indemnity basis.

The plaintiff, Shamsul Alam MD, moved for default judgment against the defendant, Azam Khan a.k.a.

MD Azam Khan, regarding alleged loans for construction at eight properties.

The defendant sought to set aside the noting in default.

The court found the evidentiary record insufficient to grant default judgment and noted inconsistencies in the plaintiff’s affidavits and the nature of the parties’ relationship.

Despite the defendant’s significant delay and lack of explanation, the court set aside the noting in default to allow the matter to proceed on the merits, emphasizing the need for a fair trial and the complexity of the issues.

This endorsement addresses the issue of costs following the granting of summary judgment in favour of the Defendant Ernst & Young LLP, on the basis that the limitation period for the Plaintiffs’ action had elapsed.

The court reviews the relevant factors under the Courts of Justice Act and the Rules of Civil Procedure, including the result achieved, the complexity of the issues, and the offers to settle.

The court awards costs to Ernst & Young LLP on a partial indemnity basis up to the date of its offer to settle, and on a substantial indemnity basis thereafter, ordering the Plaintiffs to pay $125,000.00 in costs.

The court considered whether the defendant, Ali Reza Enshaei, had been properly served with the statement of claim and whether the action against him should be dismissed for lack of service.

The court found that Enshaei had not been served in accordance with the Rules of Civil Procedure, but validated service as of April 6, 2022, when the statement of claim came to his attention.

The court also extended the time for service nunc pro tunc and found no prejudice to the defendant from the delay.

The motion to dismiss was dismissed, and costs were awarded to the plaintiff.

The decision addresses a motion by Heather Lynne Brose for partition and sale of the matrimonial home, an advance on equalization, and financial disclosure in the context of divorce and equalization proceedings.

The court grants partition and sale, with a four-month stay, orders disclosure by a set date, and grants leave to amend pleadings.

The court reviews the legal principles governing partition and sale, the interplay with the Family Law Act, and the requirements for financial disclosure.

The court granted summary judgment in favour of Ernst & Young LLP, finding that the limitation period for the plaintiffs’ action had expired.

The decision reviews the contractual and statutory limitation periods, the relevant facts, and the legal standards for summary judgment, ultimately concluding that there was no genuine issue requiring a trial.

The plaintiffs brought a motion for Certificates of Pending Litigation (CPLs) on two properties and a Mareva injunction over the proceeds of a third property sale, arising from a home renovation dispute.

The defendants failed to comply with a prior court order to produce an account reconciliation, which prejudiced the plaintiffs' ability to establish their claims.

The court dismissed the requests for CPLs and the Mareva injunction without prejudice, allowing the plaintiffs to renew the motion once the evidentiary record is complete.

The court granted the plaintiffs' request to amend their Statement of Claim and awarded them $5,800 in costs due to the defendants' improper conduct and non-compliance with court orders.

This endorsement fixes costs for a prior motion where the Respondent successfully obtained an order for the sale of the matrimonial home.

The Respondent sought substantial indemnity costs, arguing she made an equivalent to a Rule 49 offer.

The Applicant sought partial costs or that each party bear their own costs.

The court found the Respondent was the successful party but did not meet or better her offer to settle.

Consequently, costs were awarded on a partial indemnity basis.

The Applicant was ordered to pay the Respondent $4,000.00, inclusive of HST and disbursements, payable from his share of the matrimonial home proceeds upon sale.

The respondent brought a motion for partition and sale of the matrimonial home.

The applicant, an 83-year-old in ill health requiring home dialysis, opposed the sale, arguing it would jeopardize his health and that financial disclosure and equalization issues were unresolved.

The court granted the order for sale, finding no evidence that the applicant's dialysis required him to remain in the specific home and that financial issues were quantifiable and could be managed with hold-backs.

The court ordered the sale to proceed with the applicant remaining in the home until closing, allowing sufficient time for new accommodations.

The applicant sought to bring an application for judicial review of a Workplace Safety and Insurance Appeals Tribunal decision three years and eight months after it was released.

The Tribunal had previously ruled that the applicant's civil action against his employer was barred by the Workplace Safety and Insurance Act.

The Divisional Court applied the prior regime for judicial review delay, finding the applicant's explanations for the delay insufficient and concluding that prejudice to the respondents was presumed.

The motion to proceed with the application was dismissed for delay.

This endorsement addresses two motions: one by Kamali Design Home Builder Inc. ("Kamali") to declare UCY Construction & Project Management Inc.'s ("UCY") construction lien expired under sections 37 and 46 of the Construction Act, and a cross-motion by UCY to validate service of its statement of claim and extend the time for service.

The court granted Kamali's motion, declaring the UCY lien expired and dismissing the lien action, as UCY conceded the action had not been set down for trial within the statutory period.

UCY's motion to validate service was partially granted, validating service on the owner and Kamali, but not on the mortgagees, despite UCY's failure to explain the delay in service, due to actual notice and lack of prejudice.

Costs were awarded to Kamali for their successful motion, while no costs were ordered for UCY's service validation motion.

The applicants brought a motion for various relief including reconstituting the board of directors of AMPERe and piercing the corporate veil.

The respondents brought a cross-motion for injunctive relief and damages.

The court adjourned the motion due to procedural deficiencies, including poorly organized materials, lack of notice to affected non-parties, and insufficient time scheduled for the hearing.

The court ordered an urgent case conference and granted interim interim relief restraining all parties from dealing with the company's property without consent.

The appellant appealed an order refusing his motion to change a final order regarding child support arrears.

At the commencement of the appeal hearing, the self-represented respondent requested an adjournment to retain new counsel.

The appellant consented to the adjournment, noting that the parties were involved in another family law proceeding and a global mediation might resolve all issues.

The Divisional Court granted the adjournment sine die to allow the parties an opportunity to seek a global resolution.

The appellant sought a declaration of beneficial ownership in a condominium unit, claiming the respondents wrongfully terminated a Reservation Agreement without reasonable notice.

The Court of Appeal dismissed the appeal, finding that the reasonable notice argument was not properly raised before the application judge or in the appeal factum.

Furthermore, the court held that the appellant's persistent refusal to complete the purchase and his failure to maintain communication negated any claim of insufficient notice regarding the agreement's termination.

The moving party brought a motion for leave to appeal an order dated July 6, 2022.

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

Maria Amorim appealed a judgment that declared her ineligible for survivor pension benefits under the Pension Benefits Act, based on a finding that she and Daniel Carvalho were living "separate and apart" when he began receiving disability benefits.

The Court of Appeal dismissed the appeal, affirming the application judge's factual finding that the parties were living separate and apart, which was entitled to deference.

The court found no reviewable error in the application judge's holistic consideration of the indicia for "separate and apart" status.