Patrick Di Monte

The appellant appealed from an order dismissing his solicitor negligence action for delay.

The action was commenced in August 2009 and related to the dismissal of a motor vehicle accident action arising from two accidents that occurred in 2001.

The motion judge found inordinate and inexcusable delay, including that the appellant took more than five years to answer undertakings.

The Court of Appeal found no merit in the appeal, concluding that actual prejudice resulted from the delay, making a trial within a trial impossible.

The appeal was dismissed with costs awarded to the respondent.

The appellants, parents of the wife in a family law proceeding, appealed a summary judgment that found no monies were due under a mortgage they held on the matrimonial home.

The central issue was whether funds provided by the appellants to pay off the existing conventional mortgage constituted a loan or a gift.

The motion judge found the transfers were gifts, not loans, based on the lack of any prior discussion of loan terms, absence of security documentation for earlier transfers, and the celebratory "mortgage free" event after the conventional mortgage was paid off.

The Court of Appeal upheld the motion judge's findings, finding no palpable and overriding error in the factual determinations.

The Applicant sought sole custody, therapeutic supervised access, and child support.

The Respondent's pleadings were struck due to non-compliance with court orders and misconduct during access visits.

The court granted the Applicant sole custody, ordered no access for the Respondent (subject to a future therapeutic plan at his expense), fixed ongoing and retroactive child support, and dismissed the Applicant's request to declare the Respondent a vexatious litigant but imposed an order under Rule 1(8) of the Family Law Rules preventing him from bringing further proceedings until outstanding costs are paid.

The defendant, Peel Condominium Corporation No. 507, brought a motion for security for costs against the plaintiff, Precision Tree Care Ltd., in a construction lien action.

The plaintiff claimed for tree trimming services, alleging verbal authorization for work significantly exceeding the initial estimate.

The defendant argued the plaintiff lacked sufficient assets in Ontario and failed to provide adequate financial disclosure to prove impecuniosity.

The court found the plaintiff to be impecunious based on the evidence provided, including records of creditor enforcement and lack of income.

Furthermore, the court determined that the plaintiff's case was not "plainly devoid of merit," a lower threshold for impecunious plaintiffs.

Consequently, the motion for security for costs was dismissed.

This case involved a commercial landlord-tenant dispute concerning a lease for an auto plaza unit.

The landlord sought declarations of lease breach and termination, damages for arrears, unapproved alterations, oil spills, and an order for possession.

The court found that the lease was not renewed for a second term, and the tenancy continued on a month-to-month basis, which was properly terminated.

The court awarded the landlord damages for outstanding lease payments, water bills, and fines incurred due to the tenants' unapproved alterations.

Issues regarding further damages for alterations and environmental contamination from oil spills were bifurcated for a future assessment.

The defendant solicitor brought a motion to dismiss the plaintiff's solicitor negligence action for delay under Rule 24.01.

The underlying action related to a motor vehicle accident claim that was previously dismissed.

The court found the plaintiff's delay of nearly nine years to be inordinate and inexcusable, noting significant periods of inactivity and failure to answer undertakings.

The court also found actual prejudice to the defendant due to the loss of critical evidence, including the destruction of the underlying defence file, the death of a key medical expert, and the inability to locate the plaintiff's purported employer.

The motion was granted and the action was dismissed.

Following a trial where the plaintiffs recovered $9,000 for wrongful distress, the court determined costs.

The plaintiffs were ordered to pay $9,000 in costs to two individual defendants against whom the action was discontinued at the opening of trial.

Because the plaintiffs recovered an amount within the monetary jurisdiction of the Small Claims Court and failed to tender evidence supporting their $80,000 claim, their costs against the remaining defendants were limited to the Small Claims Court scale, fixed at $6,098.64.

The defendant landlord was also ordered to pay the defendant bailiff's costs of $20,085.75 on a partial indemnity scale for unsuccessfully defending a crossclaim for indemnification.

The appellant condominium corporation appealed a Superior Court decision that dismissed its negligence claim against multiple defendants for delay in service.

The claim involved construction defects discovered in 2012 and issued in 2014 but not served within the required six-month period.

The appeal judge reversed the master's decision, finding palpable and overriding errors of fact and law.

However, the Court of Appeal found that the appeal judge's decision was based on a transcription error in the master's reasons (where "institutional" was incorrectly transcribed as "individual"), which created a false inconsistency.

The Court of Appeal allowed the appeal and restored the master's decision, finding that the master properly applied the legal principles regarding delay and prejudice.

The plaintiff corporation purchased equipment from a tenant operating a kitchen manufacturing business.

The landlord subsequently distrained the equipment for unpaid rent owed by a subsequent tenant and sold the goods through a bailiff.

The plaintiff sued the landlord and the bailiff for trespass to goods.

The court found that the plaintiff owned the goods at the time of sale and that the landlord's distress was unlawful.

The court awarded damages of $9,000, representing the liquidation value of the goods, holding the landlord and bailiff jointly liable, but ordered the landlord to fully indemnify the bailiff.

Appeal from a trial judgment concerning the treatment of a Maher (Islamic marriage contract) in the equalization of net family property under the Family Law Act.

The trial judge excluded the Maher payment from the calculation of net family property and treated it as a separate obligation.

The appellate court allowed the appeal, holding that the Maher payment must be included in the equalization calculation because the parties did not expressly agree to exclude it from net family property.

The court distinguished the case from Khanis v. Noor Mohamed, where the Maher contained express language excluding it from net family property.

The court reduced the equalization payment but confirmed the wife's entitlement to collect the Maher obligation as a debt.

The plaintiff and defendant engaged in a joint venture to purchase, demolish, rebuild, and sell two residential properties.

Following the sale of the second property, the parties disputed the division of the net proceeds, which were paid into court.

Due to poor record-keeping and extensive cash payments, the court had to determine the total cost of construction and the respective financial advances made by each party.

The court calculated the net outstanding advances owed to each party and ordered that these amounts be paid out before the remaining funds are split 65/35 in accordance with their agreement.

The respondent, Claudette Ann-Marie Miller, brought a motion under Rule 49.09 of the Rules of Civil Procedure to enforce an offer to settle made by the applicant, David Anthony Martin, on September 2, 2015, which she claimed to have accepted on March 13, 2017.

The applicant argued that the offer was implicitly withdrawn by earlier rejections, subsequent oral discussions, and changed circumstances involving other court proceedings.

The court, relying on Rule 49 and appellate precedent, held that a Rule 49 offer can only be withdrawn in writing and is not terminated by rejection or counter-offers.

The court found the respondent's acceptance valid and granted judgment in terms of the accepted offer, dismissing the applicant's arguments as speculative.

The defendant brought a motion for summary judgment to dismiss the plaintiff's claim for solicitor's negligence, arguing it was statute-barred under the Limitations Act, 2002.

The plaintiff, a lawyer, alleged he discovered the negligence later than the defendant claimed.

The court applied the Hryniak roadmap and found the plaintiff failed to rebut the presumption that the limitation period had expired, as he was aware of the material facts constituting his cause of action by July 2009 at the latest.

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

The Applicants sought substantial indemnity costs after successfully obtaining a statutory injunction and declaratory relief against the Respondent for contravening a municipal zoning by-law.

The court denied substantial indemnity costs, finding the Respondent's conduct did not meet the "reprehensible" or "egregious" threshold required for such an award.

The court also rejected the argument that the public interest nature of by-law enforcement warranted higher costs.

Instead, the court awarded partial indemnity costs, fixing fees and disbursements based on the principles of reasonableness and proportionality, considering the complexity and importance of the matter.

The applicants sought a statutory injunction under section 380 of the City of Toronto Act to restrain the respondent from operating a commercial parking lot in contravention of a zoning by-law.

The respondent conceded the non-compliance but argued the parking lot was a legal non-conforming use.

The court found the applicants had standing as taxpayers and established a clear breach of the by-law.

The respondent failed to prove continuous use as a commercial parking lot since the by-law's passage, as the property was previously used as an accessory lot.

Finding no exceptional circumstances, the court granted the statutory injunction and related declaratory relief.

The plaintiff moved for summary judgment seeking an order for the sale of a property or a finding of constructive trust, alleging a fraudulent conveyance under the Fraudulent Conveyances Act.

The motion was dismissed as the court found a genuine issue requiring a trial.

The court determined that a full evidentiary record was necessary to properly assess the flow of funds from a prior property sale, an alleged loan by one defendant to his parents (the other defendants), and its repayment, which were central to determining if valuable consideration was given and if the transaction was impeachable.

The applicant moved for an order striking the respondent's pleadings, staying proceedings, or for security for costs due to alleged non-compliance with orders and unpaid costs.

The respondent brought a cross-motion seeking to vary child support, rescind arrears, obtain financial disclosure from the applicant, and prevent further motions without leave.

The court dismissed the applicant's motion to strike pleadings and for security for costs, finding that the respondent's failure to pay costs was due to a medical condition and that disclosure was largely forthcoming.

The respondent's motion for summary judgment on access was not dealt with, and his motion to reduce child support was adjourned.

The plaintiff landlord brought a motion for summary judgment against a commercial tenant and its indemnifiers for damages arising from a breached lease.

The tenant failed to complete fixturing or pay rent, prompting the landlord to terminate the lease.

One indemnifier opposed the motion, arguing lack of consideration, defective notice, non est factum, and lack of independent legal advice.

The court applied the summary judgment framework and found no genuine issues requiring a trial, holding that the indemnifier received consideration and the landlord's notice of termination properly preserved its right to claim future damages.

Partial summary judgment was granted for arrears and future losses up to a specified date, with costs awarded to the plaintiff.

The defendants brought a motion to amend their Statement of Defence and Counterclaim and to add four sub-trades as parties in a residential construction dispute.

The plaintiff opposed the motion.

The Master denied the addition of the sub-trades, finding it would create an unwieldy and cumbersome litigation file and that there was no privity of contract between the defendants and the sub-trades.

The Master allowed various housekeeping amendments to the pleadings but denied certain other substantive amendments.

Costs of $4,500 were awarded to the plaintiff.

The defendants in a construction contract dispute brought a motion to amend their Statement of Defence and Counterclaim to add four sub-trades as parties and to claim aggravated and punitive damages against the plaintiff homebuilder.

The court denied the request to add the sub-trades, finding it would create an unwieldy and cumbersome litigation file with no privity of contract between the defendants and the sub-trades.

However, the court allowed the amendments to the pleadings regarding the damages claims, noting that while the defendants' case appeared weak, it was not for a Master to determine the merits at this stage.

Costs of $4,500 were awarded to the plaintiff.