Patrick DiMonte

Mohammad Akram, an incapable person with substantial property, had The Bank of Nova Scotia Trust Company appointed as interim guardian.

Due to persistent family disputes and non-cooperation, the interim guardian moved for its removal, the appointment of the Public Guardian and Trustee (PGT), and approval of its compensation and indemnification for legal fees.

The court determined it lacked authority to appoint the PGT as guardian without the PGT's consent and a formal application, especially since other family members expressed willingness to act.

The court denied the immediate removal of the interim guardian but varied the existing Order Giving Directions to establish a structured timetable for the appointment of a permanent guardian and mandatory mediation.

The court granted the interim guardian permission to pre-take compensation and indemnify itself for legal fees, and appointed the PGT as litigation guardian for the purpose of passing accounts.

This decision addresses costs following the dismissal of Mario Andriano's motion to change child support and rescind arrears.

Pasqualina Scarola and the Ministry of Community and Social Services/York Region Social Services sought costs.

The court found Mario Andriano to be the unsuccessful party and rejected his allegations of unreasonable litigation conduct against Scarola.

Scarola's offer to settle, which was bettered at trial, entitled her to full recovery costs.

The Ministry and Region were also awarded costs.

The moving party father brought a motion to change a 2015 final order that imputed his income at $70,000 and ordered child support.

He argued that his relapse into daily drug use and subsequent driver's license suspension constituted a material change in circumstances.

The court dismissed the motion, finding the father's evidence regarding his income and drug use unreliable, and concluding that his license suspension was a self-induced consequence of failing to pay child support.

The court also added the father's unpaid share of orthodontic expenses to his child support arrears, fixing total arrears at $48,024.

The appellant operated a commercial parking lot that was not in compliance with the applicable Zoning By-Law.

The appellant sought to establish that the property constituted a legal non-conforming use by demonstrating continuous operation of a commercial parking lot since the By-Law's passage in 1993.

The application judge found that the lot had been used as an accessory lot rather than a stand-alone commercial parking lot from 1993 through 1996, and therefore fell out of compliance when its use changed.

The application judge granted declaratory relief and an injunction restraining operation of the parking lot.

On appeal, the appellant failed to establish a palpable and overriding error.

The appeal was dismissed with costs awarded to the respondent.

The defendant moved to dismiss the plaintiffs' 2003 franchise dispute action for delay under Rule 24.01(1)(e), and the plaintiffs brought a cross-motion to restore the action to the trial list.

The court found a period of inordinate and unexplained delay, largely attributable to the plaintiffs' former counsel's neglect.

However, the court also found that the delay caused actual prejudice to the defendant, as key executives involved in the franchise negotiations had left the company during the delay period, creating a substantial risk that a fair trial was no longer possible.

The defendant's motion was granted and the action was dismissed.

A subcontractor brought a simplified procedure summary trial seeking payment for renovation work performed on two public construction projects and claimed against a labour and material payment bond issued by the defendant insurer.

With respect to the first project, the court found the subcontractor proved the debt owed by the general contractor but failed to comply with the notice and timing conditions precedent required to enforce the labour and material bond against the surety.

As a result, the debt was recognized but not enforceable against the insurer.

For the second project, the court found the subcontractor properly complied with the bond notice requirements and proved the amount owing, while the defendant failed to produce reliable evidence of deficiencies or rectification costs.

Judgment was therefore granted against the insurer for the second project only.

The plaintiff brought a pre-trial motion seeking to amend pleadings in two consolidated construction-related actions originally commenced in Small Claims Court.

The requested amendments included increasing the monetary claims above the former Small Claims Court jurisdictional limit, correcting a bond number, asserting rights under a labour and material bond, and adding claims for relief from forfeiture under the Courts of Justice Act and the Insurance Act.

The court held that increasing the quantum of damages already claimed did not constitute a new cause of action and allowed the amendments raising the amounts claimed.

However, the court refused amendments introducing a claim under a labour and material bond where the original pleadings relied on an incorrect performance bond, finding this would introduce a new and statute-barred claim causing presumed prejudice.

The court also rejected the proposed amendments seeking relief from forfeiture because the plaintiff had failed to comply with condition precedent notice requirements and its conduct in delaying the amendment was unreasonable.

The father appealed a summary judgment order in a child protection proceeding that made the child a Crown ward without access for the purpose of adoption.

He argued that the motions judge erred by failing to apply the “full appreciation” test from Combined Air Mechanical Services Inc. v. Flesch, by preferring expediency over fairness, and by improperly assessing his evidence, criminal history, and alleged drug use.

The court held that the Combined Air test did not apply to summary judgment under rule 16 of the Family Law Rules in child protection proceedings and confirmed the distinct jurisprudence emphasizing the child’s best interests and timely permanency.

The court found the father failed to put forward sufficient evidence or a viable plan of care and had not complied with prior supervision conditions relating to drug testing and parenting responsibilities.

Concluding that no genuine issue requiring a trial existed and that the child’s best interests supported permanency through adoption, the appeal was dismissed.

Former employees brought a motion seeking to validate or extend time for service of their statements of claim against remaining individual defendants after previous service attempts failed to comply with a court order and the Rules of Civil Procedure.

The court considered Rules 1.04, 2.01, 3.01 and 14.08 and the governing principles for extending time for service, focusing primarily on whether the defendants would suffer prejudice from the delay.

Although the plaintiffs’ counsel demonstrated significant delay and inadequate diligence in effecting service, the defendants provided no concrete evidence of actual prejudice resulting from the delay.

The court held that procedural rules should be applied liberally to allow disputes to be resolved on their merits.

Time for service was extended for two defendants and late service on another defendant was validated.