R. Christopher M. Belsito

The plaintiff, Novastar Corporation Inc., sought summary judgment against the defendants, Michael and Danielle Amoroso, for repayment of a $250,000 loan evidenced by a demand promissory note.

The defendants argued the claim was statute-barred and Danielle raised a non est factum defence.

The court found that a clear and unequivocal demand for payment was not made until May 2023, and the action was commenced within the limitation period.

Danielle’s non est factum defence failed as she did not exercise reasonable care in signing the note.

Summary judgment was granted in favour of the plaintiff.

On a post-trial distribution motion arising from a failed land development scheme, the court addressed competing claims between settling investors and investors who proceeded through trial and appeals.

The settling parties obtained judgment on their settlement agreements, but were denied equitable liens over preserved funds because their rights were contractual, the defendants were not shown to own the preserved funds, and equity favoured the trial parties who preserved assets and bore the burdens of the litigation.

The court also held that the trial parties lacked standing to raise limitation defences to enforcement of the settlements, and excluded a disputed email under settlement privilege.

The funds paid into court were ordered distributed pro rata among the trial parties, subject to specified limitations tied to claims against one defendant.

This judgment addresses two lien actions arising from bridge rehabilitation work.

The plaintiffs, JCL Concrete Pumping Limited and Ontario Trucking and Disposal Ltd., claimed breach of contract or, alternatively, quantum meruit and unjust enrichment against SEMA Railway Structures Inc. for materials and equipment supplied.

The central issue was whether a contract was formed between SEMA and the plaintiffs, or with "JCL Group Inc." The court found no contract between SEMA and the plaintiffs, concluding that SEMA reasonably believed it was contracting with JCL Group Inc. As the plaintiffs had unequivocally withdrawn their alternative claims in quantum meruit and unjust enrichment prior to trial, the court dismissed their actions and discharged their liens.

SEMA's set-off claim was also dismissed as it was contingent on a contract being found.

This decision addresses a costs motion following the successful summary judgment dismissal of an action.

The Defendants sought substantial indemnity costs, arguing their offer to settle and the Plaintiff's conduct warranted it.

The Plaintiff argued for a lower partial indemnity amount, citing excessive time and hourly rates in the Defendants' bill of costs.

The court found that Rule 49.10 was not triggered because the Plaintiff obtained no judgment.

It also determined that the Plaintiff's conduct, while unsuccessful, did not rise to the level required for substantial indemnity costs.

The court awarded partial indemnity costs, reducing the quantum sought due to an excessive law clerk rate and potential duplication of effort, fixing the all-inclusive amount at $22,000.00.

The defendants brought a motion for summary judgment to dismiss an action alleging a binding agreement for the purchase of a property.

The plaintiff claimed an oral agreement was reached and subsequently reduced to writing via email exchanges, or alternatively, that a binding agreement was formed through later email communications.

The court found no genuine issue requiring a trial, concluding that the objective evidence, particularly the parties' written communications, demonstrated a lack of intention to create a legally binding relationship and an absence of agreement on essential terms, such as the closing date.

The court also dismissed the plaintiff's claim for unjust enrichment due to a lack of tangible benefit to the defendants.

The motion for summary judgment was granted, and the action was dismissed.

The moving party brought a motion for leave to appeal an unreported order of McGee J. dated May 25, 2023.

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

The appellants (owners) appealed a trial judgment awarding the respondent (contractor) damages and a construction lien for unpaid work and lost profits under a fixed-price residential construction contract.

The owners had terminated the contract mid-construction, alleging fundamental breach due to unilateral design changes and delays.

The trial judge found the owners were responsible for design flaws, the contractor's changes were necessary and approved, and there was no fundamental breach justifying termination.

On appeal, the Divisional Court upheld the trial judge's findings, concluding there was no palpable and overriding error in the assessment of fundamental breach, the valuation of the work completed, or the award for lost profits.

The court also rejected the owners' argument that the trial judge's negative credibility findings against them demonstrated a reasonable apprehension of bias.

The defendants brought a motion for leave to appeal a costs order and an interest award.

The Divisional Court dismissed the motion for leave to appeal the costs order, awarding costs of $5,000 to the plaintiff.

The court noted that leave is not required to appeal the interest award, which may be addressed at the hearing of the appeal from the trial judgment.

The moving party sought an extension of time to serve and file a notice of appeal from a judgment under the Construction Act.

The moving party's former counsel mistakenly believed the appeal period was 30 days under the Rules of Civil Procedure, rather than the 15 days prescribed by the Construction Act.

The court granted the extension, finding that the moving party had a bona fide intention to appeal, the 14-day delay was explained by counsel's inadvertence, there was no prejudice to the responding parties, and the proposed appeal was not devoid of merit.

The plaintiff was largely successful at a three-week construction lien trial, recovering $143,787.65.

The plaintiff sought costs on a substantial indemnity basis, relying on three offers to settle that were all beaten at trial.

The court awarded the plaintiff $180,739.70 in all-inclusive costs, finding that the defendants unreasonably resisted the claim and that proportionality should not be rigidly applied to undercompensate a successful party facing an unmeritorious defence.

The court also awarded pre-judgment and post-judgment interest at the contractual rate of 12% calculated daily on the lien-able portion of the judgment, and at the Courts of Justice Act rate on the damages for breach of contract.

The plaintiff, a construction company, brought a lien action against the defendant homeowners for unpaid work on a fixed-price custom home contract.

The defendants terminated the contract, alleging fundamental breaches by the plaintiff, including deviations from plans, unilateral changes, and project delays, and sought a declaration of repudiation and damages.

The court found no fundamental breach by the plaintiff, attributing delays and necessary changes to deficiencies in the defendants' own plans and designs.

The court concluded that the defendants wrongfully terminated the contract to avoid payment of the first milestone draw and to renegotiate the fixed price.

Judgment was granted in favour of the plaintiff for the lien amount and damages for breach of contract, and the defendants' counterclaim was dismissed.

The applicant property owners sought a writ of possession and the removal of a caution to complete the sale of a commercial unit to a third-party purchaser.

The respondent tenant, who had been overholding since the expiration of the original lease, claimed a First Right of Refusal (FRR) to match the purchase offer.

The court found that the FRR expired with the original lease and did not carry over into the overholding period.

The application was granted, the caution was ordered removed, and a writ of possession was issued.

The applicant purchaser sought the return of a $116,154.80 deposit paid for a pre-construction home after the respondent vendor terminated the agreement of purchase and sale.

The vendor alleged the purchaser breached the agreement by listing the property for an assignment sale on MLS and social media without consent.

The court found that while the MLS listing was a technical breach, the purchaser cured the default within the contractual five-day cure period after receiving notice.

The social media postings were found not to constitute a breach.

Consequently, the vendor's termination was invalid, and the purchaser was entitled to the return of all monies paid.

The appellant landlord appealed a Landlord and Tenant Board order requiring her to pay the respondent tenant $12,000 for illegally collected rent.

The tenant had signed a new lease with the appellant, who had purchased the property, doubling the rent without a Notice of Rent Increase.

The Board found the sole purpose of the new lease was to increase the rent, making the increase void ab initio.

The Divisional Court dismissed the appeal, holding that the Board's conclusions were based on findings of fact that were not subject to appeal and that the Board applied the correct legal principles.

Following a trial and supplementary motion where the respondent was substantially successful, the court determined the quantum and scale of costs.

The respondent had made a Rule 49 offer to settle that was more favourable than the judgment obtained.

Applying the principles of Rule 49 and the Boucher factors, the court awarded the respondent costs on a partial indemnity basis up to the date of the offer, and on a substantial indemnity basis thereafter, fixed at $108,348.46 inclusive of HST and disbursements.

The defendant brought a motion under Rule 37.14(1)(b) of the Rules of Civil Procedure to set aside a summary judgment order, arguing he was unable to attend the hearing for health reasons.

The court dismissed the motion, finding that Rule 37.14(1)(b) does not apply where a party requests an adjournment that is denied, but rather only when a party fails to appear.

The dismissal was without prejudice to the defendant's right to bring a motion under Rule 59.06(2)(a) based on fresh evidence before the original motion judge.

This motion concerned the amendment of a prior judgment under Rule 59.06(1) of the Rules of Civil Procedure to correct a calculation error regarding missed mortgage payments.

The moving party, 2424033 Ontario Ltd., sought to increase the outstanding amount on a second mortgage from $356,200 to $395,200, arguing that the original judgment incorrectly accounted for only 11 missed payments instead of 23.

The responding party, 1605041 Ontario Limited, contended that Rule 59.06(1) was narrow and inapplicable.

The court found that the error was an accidental slip or omission, as the number of missed payments was an undisputed fact at trial, and granted the motion to amend the judgment.

The applicant, 1605041 Ontario Limited (160), and the respondent, 2424033 Ontario Ltd. (242), were involved in a dispute concerning a property and a joint venture agreement. 160 sought to discharge 242's second mortgage, while 242 counter-applied for specific performance of its right of first refusal (RFR) to purchase the property and a determination of the mortgage amount owing.

The court found that 242 had a valid and enforceable RFR, which 160 had breached by attempting to sell the property to a third party without proper notice or honouring the RFR terms.

The court ordered specific performance, requiring 160 to transfer the property to 242 for $1,560,000.

The court also determined the amount required to discharge the second mortgage, disallowing several penalty fees claimed by 242 under the Interest Act, and denying 160's claimed set-offs for legal costs and first mortgagee default proceedings.

The joint venture agreement was terminated upon completion of the transfer.

The self-represented defendant brought a motion to transfer the action from the Central East Region (Newmarket) to the Toronto Region, citing lack of reliable transportation and financial means.

The plaintiffs opposed the motion, arguing it would be inconvenient for them as elderly individuals.

The court dismissed the defendant's motion, finding that the defendant failed to establish that the proposed Toronto venue was "significantly better" than the plaintiff's chosen venue in Newmarket, after a holistic consideration of the factors under Rule 13.1.02 of the Rules of Civil Procedure.

Costs of the motion were reserved to the trial judge.

The applicant sought an order to transfer six separate Small Claims Court actions to the Superior Court of Justice and consolidate them into a single action, arguing they were improperly brought or that the court should exercise its inherent jurisdiction.

The court found that the actions were properly brought in Small Claims Court as each was founded upon a separate cause of action, not a division of a single cause.

The court declined to exercise its inherent jurisdiction to transfer, emphasizing that such discretion should be rarely exercised.

It determined that the actions were not complex, did not require expert evidence, and were ready for trial in Small Claims Court, and that transferring them would increase costs and delay, negatively impacting access to justice.

The application was dismissed.