Patrick Di Monte

The plaintiff subcontractor brought a construction lien action against the defendant general contractor and owner for unpaid invoices and extras relating to structural steel work.

The defendant general contractor counterclaimed for delay, deficiencies, and back charges, arguing the plaintiff failed to adhere to the project schedule and change order procedures.

The court found that the parties never agreed to a formal written contract or the change order procedure, but proceeded on an agreed price and scope of work.

The court held the plaintiff completed its work within a reasonable time and was not responsible for the project delays, which were attributable to the general contractor.

The plaintiff's claim for the contract balance and proven extras was allowed, and the defendant's counterclaim was dismissed.

The plaintiff mortgagee brought proceedings arising from a default under a mortgage registered against a commercial property.

The mortgage secured a principal amount of $1.2 million and had matured without any payments being made.

The defendant mortgagor and related parties challenged enforcement steps following the issuance of a notice of sale under the Mortgages Act.

The court found there was no viable defence to the enforcement proceedings and granted possession and ancillary relief, including orders directing tenants and government agencies to pay rents directly to the mortgagee.

The applicants moved for leave to amend their pleadings to withdraw long-standing admissions that the respondent held a right of way across their land.

The admissions had been made in three related proceedings spanning more than a decade and had formed the factual basis of a prior judgment and an endorsement by the Court of Appeal.

The applicants argued a title search revealed the right of way may not have been validly transferred in the chain of title.

Applying the test for withdrawing admissions, the court held the applicants failed to show the admissions were inadvertent and found that allowing withdrawal would cause significant prejudice because earlier court decisions relied on the admitted fact.

Public policy and finality of litigation also weighed against permitting the amendment.

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.

Following dismissal of a motion for partial summary judgment, the successful defendant sought costs on a partial indemnity basis.

The plaintiff opposed costs or alternatively argued that any award should be proportional given the simplified procedure context and the modest amount in issue.

The court applied the general rule that costs follow the event and considered proportionality and Rule 57.01 of the Rules of Civil Procedure.

The court reduced the amount sought and awarded a reasonable partial indemnity costs amount.

The appellant appealed a motion judge's decision striking out his statement of claim for failing to disclose a reasonable cause of action and dismissing his motion for leave to amend.

The appellant argued he should be allowed to amend his claim to assert negligence against the respondent bank as a guarantor or surety of the corporation's obligations.

The Court of Appeal dismissed the appeal, finding no lis between the appellant and the bank because his obligations were to third parties, not the bank.

Furthermore, the court agreed that the appellant's potential claim was derivative of the corporation's claim and could only be asserted by the corporation.

The plaintiff subcontractor brought a motion for partial summary judgment against a surety insurer under labour and material payment bonds after obtaining default judgments against the general contractor in Small Claims Court.

The insurer opposed the motion, arguing that multiple factual issues required determination at trial, including whether the bonds provided coverage, whether notice requirements were met, and whether limitation defences applied.

Applying the post‑amendment summary judgment framework and the Court of Appeal’s guidance in Combined Air Mechanical Services Inc. v. Flesch, the court held that the competing affidavits revealed significant factual disputes requiring credibility assessments.

The court concluded that the “full appreciation test” could not be satisfied on the motion record.

The motion for partial summary judgment was dismissed and the matter was directed to proceed by summary trial under Rule 76.

In a medical malpractice and conspiracy action, a defendant physician moved for summary judgment and to strike claims under Rules 20, 21.01(3)(d), and 25.11.

The court held that the conspiracy allegations required the forensic machinery of a trial and declined to apply the best-foot-forward principle on this record.

On the malpractice claim, the court found the existing anesthesiologist report insufficient on the general practitioner standard of care but concluded a treating physician was not categorically disqualified from providing qualifying opinion evidence.

The motion was made conditional on service of a compliant report within 30 days, failing which the action against the moving physician would be dismissed with costs.

The appellant appealed a costs order of $22,263.24 plus HST made following the disposition of jointly tried issues under the Partition Act and Family Law Act.

The trial judge awarded costs to the respondent based on 80% success and an earlier offer to settle.

The Court of Appeal dismissed the appeal, finding no error in principle and holding that the trial judge's discretionary costs award was supported by the record and not plainly wrong.

The appellant appealed a motion judge's decision granting a partial award for storage and demurrage charges in an arbitrary amount and directing the balance to trial.

Both parties agreed the motion judge erred in this regard.

The appellant sought to have the entire matter sent to trial, while the respondent cross-appealed for summary judgment for the full amount claimed.

The Court of Appeal allowed the cross-appeal, finding that the appellant failed to put its best foot forward on the summary judgment motion to dispute the quantum or the invoices once the respondent's entitlement to a lien was established.

The respondent was granted judgment for the full amount claimed.

The plaintiff brought a motion seeking leave to appeal a costs order of $39,000 awarded to the defendant following a successful summary judgment motion.

The plaintiff argued the costs award was unreasonable and approximated substantial indemnity.

The Divisional Court dismissed the motion, finding no error in principle and emphasizing that leave to appeal costs orders should be granted sparingly and deference must be accorded to the motion judge's discretion.

The appellant brought a motion to interfere with the lower court's costs order and the date on which pre-judgment interest should commence to run.

The Court of Appeal found no basis to interfere with the orders below and dismissed the motion.

The appellant subcontractor caused a fire while using an acetylene torch on an apartment building.

The trial judge found the appellant negligent but also found the respondent general contractor had instructed him to proceed despite the danger, apportioning fault 50-50.

On appeal, the Court of Appeal upheld the dismissal of the volenti non fit injuria defence but reapportioned fault 75% to the respondent and 25% to the appellant, citing the power imbalance between the parties.

The Court also reduced the damages award, finding that legal fees incurred by the respondent in litigation with its insurer were too remote to be recoverable.

The Superintendent of Financial Services proposed to revoke the applicant's mortgage brokerage licence and impose a $1,000 administrative penalty for failing to maintain required errors and omissions insurance.

The applicant surrendered its licence, leaving only the penalty at issue.

The Financial Services Tribunal found that the applicant negligently failed to obtain the required insurance, justifying a penalty.

However, considering mitigating factors, including the applicant's mistaken belief that its real estate insurance was sufficient and its lack of actual mortgage brokerage business, the Tribunal reduced the penalty to $250.

The appellants appealed an order regarding the permanent placement of a child.

The Court of Appeal dismissed the appeal, finding that the appeal judge gave thorough reasons, applied the proper test, and did not misapprehend the evidence.

Given the lengthy delay and the appellants' inability to provide an alternative plan, the Court held that it was in the child's best interests to have a permanent home without further delay.

The appellant landlord appealed an order granting the respondent tenants specific performance of an option to purchase contained in a commercial lease.

The landlord argued that damages were a sufficient remedy, the option was a clog on the equity of redemption, and the option provision was ambiguous.

The Court of Appeal dismissed the appeal, finding that specific performance was appropriate because the property was unique to the tenants due to their significant investments.

The court also held that there was no mortgage between the parties to create a clog on the equity of redemption, and the option provision was unambiguous.

The appellant insured appealed a summary judgment dismissing her claim for property damage caused by mould on the basis that it was barred by a one-year limitation period.

The Court of Appeal allowed the appeal, finding genuine issues for trial regarding whether the former six-year limitation period applied, when the extent of the mould was discovered, and whether the appellant was bound by the one-year limitation period in the insurance policy given her assertion that she never received it.

The appellants appealed a motion judge's decision allowing an action to proceed in Ontario.

The Court of Appeal allowed the appeal, finding the motion judge erred by ignoring a British Columbia forum selection clause in the parties' contract and by failing to apply the real and substantial connection test.

Applying the test, the Court found the contract was made, performed, and breached in British Columbia, and there was no real and substantial connection to Ontario.

The action was stayed.

The appellant appealed a motion judge's decision regarding the amounts required to redeem a mortgage.

The Court of Appeal dismissed the appeal, finding that the appellant could not raise the respondent's entitlement to redeem for the first time on appeal.

The Court upheld the motion judge's findings that the parties had settled outstanding costs for $20,000 and that the appellant was not entitled to claim unpaid management fees for time spent by its principal, as these were not expenses actually incurred under the Standard Charge terms.