Patrick Di Monte

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.

Following a decision traversing a motion in writing to be heard in open court, the parties submitted written submissions on costs.

The court determined that the most fair and reasonable disposition was to reserve the issue of costs to the judge who ultimately presides over the motion in open court.

The appellants appealed a decision concerning damages from an interim injunction they obtained against the respondents and compensation for work the respondents were obliged to complete under a 2010 court order.

The Court of Appeal dismissed the appeal, upholding the trial judge's assessment of damages, which included interest rate differentials and lender's amendment fees due to the injunction, and the compensation for expenditures related to the 2010 order.

The court found no palpable and overriding error in the trial judge's factual findings and deferred to his interpretation of the 2010 order.

The defendant brought a motion in writing to discharge a section 71 notice on its property and release a $50,000 deposit following an aborted real estate transaction.

The plaintiff opposed, arguing it still had an agreement to purchase the unique property and that the defendant caused the financing failure by withholding financial information.

The court declined to decide the matter in writing due to untested conflicting assertions of fact and credibility issues, adjourning the motion to be heard in open court.

The court issued a corrigendum to correct an error in an endorsement dated April 16, 2021.

The correction clarified that the applicant's pension benefits were reduced to the joint and survivor benefit level commencing May 1, 2010, and that the clawback of overpayments commenced February 1, 2011.

The court also amended the endorsement to direct that payments to the applicant on a life-only basis be made retroactive to May 1, 2002, with pre-judgment interest.

The applicant sought a declaration that his former spouse did not meet the eligibility requirements for a joint and survivor pension under the Pension Benefits Act.

The applicant argued they were living separate and apart when his disability pension commenced, or alternatively, that she had signed a spousal waiver.

The court found that the parties were living separate and apart at the relevant time, as they lived in different countries with no significant interaction.

Although the court found the applicant had forged the respondent's signature on the spousal waiver, he was still entitled to a life-only pension based on the separation.

Costs were denied to the successful applicant due to his deceptive conduct regarding the waiver.

The defendants sought summary judgment based on a settlement agreement they claimed the plaintiff had accepted.

The plaintiff argued the agreement was not binding due to a minor typographical error in the release and the inclusion of non-disclosure and non-disparagement terms.

The court found that a binding settlement agreement was concluded on December 12, 2017, as the plaintiff had clearly and unconditionally accepted the offer, including the non-disclosure terms.

The minor typographical error and the plaintiff's subsequent attempts to renegotiate did not constitute repudiation by the defendants.

The court granted summary judgment to the defendants, dismissing the plaintiff's claim.

The parties, who own neighbouring lands, have a long history of disputes regarding their development.

The plaintiffs previously obtained an interlocutory injunction restricting the defendants from developing certain lots, which was later overturned.

The defendants sought damages resulting from the injunction, including interest rate differentials and carrying costs.

The plaintiffs brought a summary judgment motion seeking reimbursement for road construction costs and interest on letters of credit.

The court awarded the defendants damages for interest rate differentials and amendment fees caused by the injunction, but denied carrying costs for general delays.

On the summary judgment motion, the court ordered the defendants to pay their share of the asphalt and curb costs as agreed in a prior consent order, but rejected the plaintiffs' claims for additional municipal standard upgrades.

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 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 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 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.