Roman Yaroslaw Botiuk

This is an appeal from a motion judge's decision refusing to set aside a noting of default against the appellants, Jovy's Bar and its owner.

The appellants were noted in default in 2014 after failing to file a statement of defence following a 2011 assault incident.

The motion judge found significant, unexplained delays and rejected the appellants' justification of erroneous legal advice.

The Court of Appeal upheld the motion judge's discretionary decision, finding no misdirection or clear error.

While acknowledging an arguable defence, the court emphasized the appellants' strategic decision not to defend and the non-compensable prejudice to the respondents due to the extensive delay and loss of evidence.

The appeal was dismissed with costs.

The applicant mother brought a motion seeking custody/decision-making responsibility for the child, L.G., a parenting schedule, spousal support, and contributions to the child's s. 7 expenses.

The court granted the mother sole decision-making responsibility, with the child residing with the maternal grandmother and the father's parenting time at the child's discretion.

Spousal support was varied upwards to $674.00 per month on both compensatory and non-compensatory bases, and the father was ordered to pay past and ongoing s. 7 expenses.

The court found the father's conduct unreasonable, including bringing a cross-motion without leave, filing prolix and irrelevant material, and taking positions contrary to established authorities.

Consequently, the mother was awarded costs on a full recovery basis.

The plaintiff, Business Development Bank of Canada (BDC), moved for summary judgment against VDF Wine Importers Inc. (VDF) on a loan agreement and against Natale Santelli on a personal guarantee.

VDF was noted in default.

Santelli opposed, arguing the guarantee was incomprehensible and unconscionable due to his limited education and BDC's failure to ensure independent legal advice (ILA), especially given his mistaken belief of being VDF's owner, director, or officer.

The court found no genuine issue for trial, holding that VDF breached the loan agreement and the guarantee was enforceable.

The court rejected Santelli's unconscionability and non est factum arguments, noting he was a shareholder at the time of the guarantee and his subjective understanding or subsequent discovery of his corporate role did not invalidate the clear terms of the guarantee.

BDC's internal policy on "knowing your client" was not a basis to void the guarantee.

Judgment was granted to BDC for the outstanding loan amount plus interest and costs.

The applicant father sought reconsideration of the court's costs decision via a 14B motion.

The court rejected the reconsideration request, finding no merit to it.

The judge upheld the original costs award of $8,000 payable by the father to the mother, rejecting the father's solicitor's arguments that his revised submissions were more appropriate.

The judge noted that the solicitor's original submissions, which contained inappropriate allegations against opposing counsel, remained part of the court record and could not be disregarded.

The judge clarified that the costs award was not a penalty against the father's client for the solicitor's conduct, but rather reflected the substantive merits of the costs application.

The respondent mother sought costs following a successful motion on the issue of jurisdiction.

The applicant father had filed a separation agreement in the Ontario Court of Justice and sought to vary it, but subsequently argued the court lacked jurisdiction.

The court found the father's conduct unreasonable in filing the application without first determining the proper forum.

The court awarded costs to the mother at $8,000 inclusive of HST, payable within 60 days, representing near full recovery based on 45 hours at $200 per hour plus disbursements.

The applicant father sought to vary a separation agreement filed in the Ontario Court of Justice in 2007, seeking sole custody and a change in child support obligations.

The respondent mother opposed the motion and sought an increase in spousal support.

The father argued that the Ontario Court of Justice lacked jurisdiction because a subsequent divorce proceeding in the Superior Court of Justice in 2008 had directed corollary relief matters to proceed in that court.

The court held that the Ontario Court of Justice retained exclusive jurisdiction to vary the separation agreement filed pursuant to section 35(1) of the Family Law Act, as the Superior Court order was procedural only and the parties had abandoned the Superior Court proceedings through their subsequent inaction and actions in the Ontario Court.

The plaintiff creditor brought a motion for summary judgment seeking to impose liability on multiple defendants arising from unpaid invoices for tires supplied to a corporate purchaser.

The plaintiff relied on alleged non‑compliance with the Bulk Sales Act and alleged fraudulent conveyances arising from the sale of the debtor company.

The court held that summary judgment was inappropriate because the Bulk Sales Act claim had not been pleaded and the evidentiary record did not establish fraudulent conveyance or liability of the additional defendants.

On a cross‑motion, certain defendants successfully sought to vacate a certificate of pending litigation and dissolve a Mareva injunction obtained ex parte, as the plaintiff failed to demonstrate an interest in land or a strong prima facie case with risk of asset dissipation.