Ryan Wozniak

The appellant employee was temporarily laid off when the respondent's restaurant relocated.

He later claimed constructive dismissal but continued to work for the respondent to mitigate damages.

The Small Claims Court dismissed the claim, finding the employee condoned the breach by accepting wages and returning to work.

On appeal, the Divisional Court found the trial judge erred in law by equating silence with condonation, failing to allow a reasonable time to assess the new terms, and misunderstanding the law of mitigation.

The appeal was allowed and a new trial ordered.

The appellant challenged an order holding that a dispute over vested options to acquire shares in a related corporate entity had to be resolved in Delaware rather than under the mediation-arbitration clause in his Ontario employment agreement.

The court held that the competence-competence principle did not require referral to an arbitrator because arbitral jurisdiction could be determined through a superficial review of the contractual record.

Reading the employment agreement, option agreement, and incorporated equityholders agreement together, the court held that the options dispute was not contemplated by or connected with the employment agreement and was instead governed by the Delaware forum selection clause.

The court also rejected the argument that the forum selection clause was unconscionable, finding no improvident bargain or evidence that the chosen forum placed a remedy out of reach.

The appellant employer appealed a Small Claims Court decision finding that it had constructively dismissed the respondent employee and discriminated against her based on disability.

The trial judge found that the employer created a poisoned work environment by harassing the employee while she was on medical leave, including making an inappropriate unannounced visit to her home.

The Divisional Court dismissed the appeal, holding that the trial judge's findings of fact were entitled to deference and that the employee had not condoned the conduct or abandoned her employment.

The award of damages for constructive dismissal and under the Human Rights Code was upheld.

The defendant brought an unsuccessful motion for summary dismissal of the plaintiff's wrongful dismissal action.

The plaintiff sought costs of $28,000, while the defendant argued for costs in the cause or fixed at $5,000.

The court awarded the plaintiff costs on a partial indemnity scale, noting the motion was important but relatively uncomplicated.

Costs were fixed at $13,560 inclusive of HST.

The defendant employer brought a motion for summary judgment to dismiss the plaintiff's wrongful dismissal claim.

The defendant argued the claim was based solely on the Employment Standards Act and that the plaintiff sued prematurely before the 35-week temporary layoff period expired.

The court dismissed the motion, finding the statement of claim was broad enough to encompass common law claims, including allegations of deceit regarding the layoff notice, and that genuine issues of credibility required a trial.

The applicants were successful in their application for judicial review of a Small Claims Court costs decision, which was remitted back to the Deputy Judge for reconsideration and provision of reasons.

In this costs endorsement, the court awarded costs to the applicants despite their counsel acting pro bono, noting that such awards promote access to justice.

The court rejected the applicants' claim for substantial indemnity costs, finding the result was not better than their offer to settle.

Balancing the factors under Rule 57.01(1) and the principle of proportionality, the court fixed costs at $5,000 all inclusive.

The applicants sought judicial review of a Small Claims Court costs decision where the Deputy Judge ordered them, as the successful party on a motion, to pay $1,500 in costs to the plaintiff.

This amount was 15 times the maximum allowable under Rule 15.07 of the Rules of the Small Claims Court absent special circumstances.

The Divisional Court found that the Deputy Judge's failure to provide reasons for the elevated costs award constituted a breach of procedural fairness.

The costs decision was set aside and remitted back to the Deputy Judge for reconsideration and provision of reasons.

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.

Following the defendant's unsuccessful motion to transfer and consolidate the action, the successful plaintiff sought costs of $7,082.73 on a partial indemnity basis.

The defendant argued costs should be in the cause or parties should bear their own costs.

The court rejected the defendant's arguments, finding the plaintiff entitled to costs payable forthwith.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court fixed the plaintiff's costs at $6,000 inclusive.

The defendants brought a motion to transfer the action from Newmarket to Toronto to be heard immediately after a related action commenced by the plaintiff in Toronto.

The court dismissed the motion, finding that transferring the action would delay the Toronto action, which was already set down for trial.

The court noted the plaintiff's advanced age and the fact that she had been financing the Toronto litigation for five years.

The court held that the plaintiff's choice of venue was entitled to deference and there was no risk of inconsistent findings.

The Appellants appealed a Master's order that dismissed their motion to dismiss an action for delay.

The action, concerning condominium construction deficiencies from 2004, was commenced in 2014, but the plaintiff failed to serve most defendants or advance the litigation.

The Master found the plaintiff's explanation for delay unsatisfactory but dismissed the motion, inferring document preservation.

The Superior Court found the Master erred in fact and law, particularly regarding the plaintiff's lack of explanation for delay, the strong presumption of prejudice due to the expired limitation period and passage of time, and the plaintiff's failure to rebut this presumption with evidence of available witnesses and documents.

The appeal was allowed, and the action was dismissed against the Appellants. interesting_citations_summary: > This decision clarifies the application of Rule 24.01(1)(a) for dismissal for delay, emphasizing the plaintiff's onus to provide a reasonable explanation for delay and to rebut the presumption of prejudice, especially when a limitation period has expired.

It reiterates that the absence of an explanation for delay can be fatal and highlights the "culture shift" in litigation towards timely resolution, as articulated in Hyrniak and Jordan.

The case also reinforces the standard of review for Master's orders, requiring palpable and overriding error for factual findings and correctness for errors of law or principle. final_judgement: > The order of Master Muir dated February 13, 2015, is set aside, and the action is dismissed as against the Appellants for delay.

The Plaintiff is ordered to pay the Appellants’ costs of the appeal on a partial indemnity scale, with submissions to follow. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2017 decision_number: 6868 file_number: "CV-14-119561-00" source: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc6868/2017onsc6868.html" keywords: - dismissal for delay - civil procedure - appeal - Master's order - prejudice - limitation period - Rules of Civil Procedure - construction litigation - condominium - Hyrniak - Jordan areas_of_law: - Civil Procedure - Civil Litigation - Construction Law cited_cases: legislation: - title: "Rules of Civil Procedure" url: "https://www.ontario.ca/laws/regulation/900194" case_law: - title: "Housen v. Nikolaisen, 2002 SCC 33" url: "https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1964/index.do" - title: "Berg v. Robbins, 2009 ONSC 6159" url: "https://www.canlii.org/en/on/onsc/doc/2009/2009onsc6159/2009onsc6159.html" --- 2017 ONSC 6868 # Court File and Parties **COURT FILE NO.:** CV-14-119561-00 **DATE:** 20171116 **ONTARIO SUPERIOR COURT OF JUSTICE** **BETWEEN:** **York Region Standard Condominium Corporation No. 1039** Plaintiff – and – **The Corporation of the Town of Richmond Hill, Rosehill Suites Inc., Tarion Warranty Corporation, Dean Artenosi, Joseph Battaglia Architect, Arten Developments Inc., The Arten Group Inc., Principally Green Limited, 1041549 Ontario Limited carrying on business under the firm name and style Tristar Engineering, Arten Developments carrying on business under the firm name and style The Manners of Roseview Grand, Arten Developments on business under the firm name and style The Rosehill, Socia Engineering Limited, John Doe Bricklayers, Jane Doe, Adam Doe, Andrew Doe, Anthony Doe, Alex Doe, Adrian Doe, Anna Doe, Alicia Doe, Alice Doe, Amy Doe and Amanda Doe** Defendants **COUNSEL:** Patrick Di Monte for the Plaintiffs/Responding Parties K. Sherkin, R. Wozniak for the Defendants/Moving Parties **HEARD:** September 1, 2017 **Woodley, J.** # REASONS FOR DECISION ON APPEAL OF MASTER’S ORDER ## OVERVIEW [1] The Appellants, (Rosehill Suites Inc., Dean Artenosi, Arten Developments Inc., The Arten Group Inc., Principally Green Limited and Arten Developments), appeal the Order of Master Muir dated February 13, 2017 which dismissed the Appellants’ motion to dismiss the action against them (but not all of the defendants) for delay pursuant to [Rule 24.01(1)(a) of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194) (the “Rules”). [2] The Appellants submit that the Master erred in fact and in law in finding that the Plaintiff has: a) Provided a reasonable explanation for its failure to take any steps to prosecute this action concerning a construction project completed in 2004 since it was filed on August 1, 2014; b) Rebutted the presumption of prejudice to the Appellants resulting from the Plaintiff’s delay; and, c) Proven that all material witnesses and documents are available such that a fair trial of this action is possible. ## FACTS [3] The Plaintiff’s action arose out of the construction of a condominium complex located in Richmond Hill, Ontario (the “Development”).

Construction of the Development was completed in 2004. [4] The Plaintiff commenced the within action on August 1, 2014.

The Plaintiff claims damages of $1,000,000.00 as against all Defendants, jointly and severally, for negligence. [5] The Plaintiff alleges that the Development was negligently constructed resulting in visible defects in the brick exterior of the structure (the “Deficiencies”).

The Plaintiff further alleges that it first learned of the Deficiencies on August 5, 2012 when it received an inspection report from “Best Consultants, Martin Gersup Architect Inc.” [6] As of February 2017, the Plaintiff had served only two (2) of the 23 Defendants; The Corporation of the Town of Richmond Hill (“Richmond Hill”) and Tarion Warranty Corporation (“Tarion”). [7] On February 13, 2017, the Appellants (after previously advising the Plaintiff’s lawyer several times of the need to obtain an order extending the time for service of the Statement of Claim) moved before Master Muir for an order pursuant to [rule 24.01(1)(a) of the Rules](https://www.ontario.ca/laws/regulation/900194) dismissing this action as against them for delay. [8] In support of the February 13, 2017 motion, the Appellants filed an affidavit sworn by the Defendant Dino Artenosi (“Artenosi”) confirming that: a) He was, at all material times, the controlling mind of the Appellants; b) Construction of the Development was completed in 2004; c) The Appellants’ records have been purged, as it has been over 12 years since the Development was built; d) The Appellants did not learn of the existence of the Statement of Claim until on or about June 25, 2015, when Artenosi was served with the Cross-claims of Richmond Hill and Tarion; e) On October 21, 2015, November 10, 2015 and December 1, 2015, the Appellants’ lawyers wrote to the Plaintiff’s lawyer, Patrick Di Monte (“Di Monte”), advising that the Appellants had not been served with a copy of the Statement of Claim in accordance with [rule 14.08 (1) of the Rules](https://www.ontario.ca/laws/regulation/900194) and as such the Plaintiff requires an order extending the time for service of the Statement of Claim; f) Despite the above-referenced correspondence, the Plaintiff took no steps to seek an order for an extension of time to serve the Statement of Claim on the Appellants; and g) The Claim has not advanced beyond the pleadings stage. [9] The Plaintiff did not seek to cross-examine Artenosi on his affidavit. [10] On January 31, 2017 and February 8, 2017, Di Monte faxed to the Appellants’ lawyers two (2) affidavits sworn by Di Monte’s legal assistant, Ms. Deborah Merrill (“Merrill”), wherein Merrill details Di Monte’s unsuccessful efforts to serve some of the named Defendants in this action. [11] Merrill’s affidavit does not provide any explanation for: (i) the Plaintiff’s delay; (ii) for the Plaintiff’s failure to seek an order for substituted service in light of Di Monte’s unsuccessful attempts to serve all of the Defendants in accordance with the Rules; or, (iii) for the Plaintiff’s failure to seek an order extending the time for serving the Statement of Claim. [12] Moreover, Merrill’s affidavit does not provide any evidence that: (a) demonstrates that all relevant witnesses and documents are available; or (b) refutes Artenosi’ affidavit evidence. [13] By Endorsement dated February 13, 2015, Master Muir dismissed the Appellants’ motion for the following reasons: “I am not satisfied with the Plaintiff’s explanation for delay.

Even accepting the inaccuracy of the information on the Moving Defendants’ corporation profile reports, there is simply no evidence of any follow up or investigation once the Plaintiff knew the Defendants could not be found at the registered addresses.

Moreover, the Plaintiff has still not brought a motion to extend time or to validate service.

Although the principal obligation regarding prejudice rests with the Plaintiff, there is at least some obligation on the Moving Parties to demonstrate actual prejudice if it exists.

They point to the fact that they no longer have their documents and the project took place many years ago.

However, the Defendants have not stated when their documents were destroyed…It does appear that the Plaintiff’s documents are available and I infer that the documents of the individual Defendants have been preserved.

Overall, the Plaintiff’s explanation need not be perfect.

It simply needs to be adequate and I am of the view that the Plaintiff has met its onus, although barely so.” ## GROUNDS FOR APPEAL [14] The Appellants submit that Master Muir erred in fact and in law by: a) Finding that the Plaintiff furnished evidence of a satisfactory explanation for its delay despite: (i) the fact that the Plaintiff did not, provide any explanation for its delay; and (ii) Master Muir’s finding that he was “not satisfied with the Plaintiff’s explanation for delay”; b) Finding that “the Plaintiff’s documents are available” and inferring that the documents of the individual defendants have been preserved despite the fact that the Plaintiff filed no evidence addressing that aspect of the motion; and c) Finding as a matter of law, the onus of demonstrating actual prejudice rested with the Appellants despite the fact that the applicable limitation period expired in August 2014 (i.e., during the period of the Plaintiff’s delay) and the material events in question occurred in 2004. ## ANALYSIS AND THE LAW ### Standard of Review [15] An appeal from a decision of a master will only succeed if there has been an error of law, if the master exercised his discretion on wrong principle or if he misapprehended the evidence such that the decision contains a palpable and overriding error: [Housen v. Nikolaisen, 2002 SCC 33](https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1964/index.do), [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 211 D.L.R. (4th) 577. ### Applicable Test for Dismissal for Delay [16] [Rule 14.08(1)](https://www.ontario.ca/laws/regulation/900194) states that where an action is commenced by a statement of claim, the claim “shall be served within six months after it is issued”. [17] [Rule 24.01(1)(a)](https://www.ontario.ca/laws/regulation/900194) allows a defendant who is not in default under the Rules, or an order of the court, to move to have an action dismissed for delay where the plaintiff has failed to serve a statement of claim “on all of the defendants” within the a time prescribed by [Rule 14.08](https://www.ontario.ca/laws/regulation/900194). [18] On a motion to dismiss brought pursuant to [rule 24.01(1)](https://www.ontario.ca/laws/regulation/900194) the defendant must show either that: a) The plaintiff’s default has been “intentional and contumelious” – i.e., that the plaintiff or his or her lawyers have demonstrated a disdain or disrespect for the court’s process; or that b) There has been: i.

An inordinate delay for which the plaintiff or his or her lawyers are responsible; ii.

The delay is “inexcusable”, meaning that the plaintiff has failed to proffer evidence that adequately explains the delay; and, iii.

The delay has given rise to a substantial risk that a fair trial of the action will not be possible – i.e. that the defendant has suffered real prejudice as a result of the delay. [19] Any delay by a plaintiff in the prosecution of an action requires an explanation.

The onus rests with the plaintiff to show that the delay was not intentional.

In order to be accepted, the plaintiff’s explanation must be “reasonable and cogent” or “sensible and persuasive”. [20] However, as the Ontario Divisional Court held in [Berg v. Robbins, [2009] O.J. No. 6159](https://www.canlii.org/en/on/onsc/doc/2009/2009onsc6159/2009onsc6159.html) (“Berg”) at paragraph 13, “[i]n the absence of an explanation from the plaintiff for the delay, it is to be presumed that the delay was intentional, and that would appear to be the end of the matter.” [21] The inordinance of the delay is measured by reference to the length of time from the commencement of the proceeding to the motion to dismiss. [22] Lastly, in deciding whether a fair trial is still possible notwithstanding a plaintiff’s delay, the court must determine whether the defendant has suffered either deemed prejudice or actual case-specific prejudice. [23] Deemed prejudice will arise where the applicable limitation period expired during the applicable period of delay. [24] Prejudice is also inherent in long delays since memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost.

Thus, the longer the delay, the stronger the inference of prejudice to the defences’ case flowing from that delay. [25] Where a presumption of prejudice arises, the evidentiary onus shifts to the plaintiff to rebut the presumption by leading credible evidence showing: (a) that all necessary documents have been preserved; (b) the identities of all necessary witnesses; and (c) that all of the necessary documents and witnesses “with detailed recollection of events” are available. [26] For instance, in [Berg, supra](https://www.canlii.org/en/on/onsc/doc/2009/2009onsc6159/2009onsc6159.html), the Divisional Court held that the passage of 11 years between the occurrence of the events that give rise to the action and the defendant’s motion to dismiss for delay gave rise to a presumption of prejudice that the plaintiff failed to rebut.

As a result, the Divisional Court allowed the appeal and dismissed the action. [27] In the absence of deemed prejudice, a defendant must lead evidence demonstrating that it has suffered actual, or case-specific, non-compensable prejudice, such as evidence that a material witness has died or is no longer capable of recalling material events, or that evidence has been lost. [28] An order of a master, whether final or interlocutory, will only be interfered with if the master made an error of law or exercised his or her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error. [29] Thus, if a master errs in law, or exercises his or her discretion on an incorrect principles, the applicable standard of review will be correctness.

Otherwise, the applicable standard of review will be palpable and overriding error. ### Palpable and Overriding Errors of Fact [30] The Appellants submit that there was no reasonable basis on the evidence filed with the Court for the Master’s finding that the Plaintiff adequately explained its delay or demonstrated that all material witnesses and documents are available such that a fair trial is possible. [31] I accept the Appellants’ submissions in this regard on the basis of the following: a. the only evidence filed by the Plaintiff explaining delay was the affidavit evidence of the Plaintiff counsel’s legal assistant, who details unsuccessful attempts to serve some but not all of the defendants.

However, no explanation is provided why the Plaintiff has not moved the action forward, brought a motion for substituted service, or, brought a motion extending the time for service since the claim was issued on August 1, 2014; and b. the Master found that the “Plaintiff’s documents are available” and inferred that the “documents of the individual Defendants have been preserved” despite the fact that the Plaintiff did not adduce any evidence demonstrating that relevant documents have been preserved or that necessary witnesses are available and despite the fact that the Appellants specifically advised that the Appellant’s records have been purged and are no longer available. ### Errors in Law [32] The Appellants further submit that the Master committed several errors of law in dismissing the Appellants’ motion. [33] I accept the Appellants’ submissions in this regard based on the following: a. the Plaintiff’s failure to provide any explanation for its delay is in and of itself fatal.

As noted by the Divisional Court in [Berg, supra](https://www.canlii.org/en/on/onsc/doc/2009/2009onsc6159/2009onsc6159.html), “the absence of an explanation from the plaintiff for the delay…would appear to be the end of the matter”; b. the expiration of the applicable limitation period (being August 5, 2014), and the passage of 13 years since the completion of the Development gives rise to a strong presumption of prejudice.

The Plaintiff therefore had the onus of rebutting that presumption by filing credible evidence demonstrating that material witnesses and documents are available, which it did not do; and c.

Finally, the Master failed to apply the proper legal principles that apply on a motion brought pursuant to [rule 24.01(1)(a)](https://www.ontario.ca/laws/regulation/900194) - namely: i.

The delay in this case was excessive as no steps were taken to advance the litigation since the Statement of Claim was filed on August 1, 2014; ii.

The Plaintiff provided no explanation for its delay; iii.

There is a strong presumption of prejudice given the expiration of the limitation period and the passage of time since the events occurred; iv.

The Plaintiff did not file any evidence capable of demonstrating that material witnesses and documents are available; and v. The Appellants provided evidence of specific prejudice (purging of documents and unavailability of witnesses) which evidence was not considered. ## Conclusion [34] There is a culture shift in the litigation landscape heralded by the Supreme Court of Canada in Hyrniak which shift has been aided and abetted by Jordan. [35] Civil matters are not exempt from the modern litigation cultural shift.

The days are past when civil actions are allowed to slumber in court filing cabinets for years on end. [36] Procedural fairness, proportionality, and a timely hearing on the merits are attainable objectives.

The Rules of Civil Procedure safeguard the litigation process and where lengthy unexplained delays lead to specific prejudice the Rules must be strictly applied. # ORDER ON APPEAL [37] For the reasons noted herein, I hereby Order: a) That the order of Master Muir dated February 13, 2015, is set aside and the within action is dismissed as against the Appellants for delay; and b) Subject to any Offers to Settle that may affect costs, the Plaintiff shall be required to pay the Appellants’ costs of the within appeal on a partial indemnity scale, inclusive of taxes and disbursements.

The Appellants shall serve and file their costs submissions within 30 days of the date herein limited to three pages with any offers to settle and a bill of costs attached.

The Plaintiff shall serve and file their reply cost submissions within 45 days of the date herein limited to three pages with any offers to settle and a bill of costs attached.

The Appellants shall serve and file and responding cost submissions within 60 days of the date herein limited to one page.

Justice S.J. Woodley Released: November 16, 2017 York Region Stnd.

Condo Corp. v. Corp. Town of Richmond Hill et al CV-14-119561-00 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: York Region Stnd.

Condo Corp. v. Corp. Town of Richmond Hill et all REASONS FOR JUDGMENT on appeal Justice S.J. Woodley Released: November 16, 2017

The appellants appealed a trial judgment that imposed a constructive trust over their properties, declared that Venanzio Pingue was not a shareholder of the respondent company, and removed him as an officer and director due to breach of fiduciary duties.

The trial judge found that Venanzio had misappropriated $592,671.43 from the company and never paid for his shares.

The appellants argued the trial judge erred in interpreting the parties' written agreements and in refusing to admit their expert report.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's interpretation of the agreement or her discretionary decision to exclude the late expert report.

The court also dismissed the motion to admit fresh evidence and the motion for leave to appeal the costs order.

The appellant appealed a motion judge's order staying an action for breach of contract.

The motion judge found that the contract required disputes to be resolved by arbitration in South Carolina.

The central issue was whether the contractual rights assigned to the appellant were limited to those in a Joint Venture Marketing Agreement (JVMA) or included terms from an International Sales Agency Agreement (ISAA) containing an arbitration clause.

The Court of Appeal upheld the motion judge's findings that both agreements were assigned to the appellant and that the parties conducted themselves in accordance with the ISAA, including its arbitration clause.

The appellant appealed an order dismissing its motion to restore a construction lien action to the trial list and denying it the right to deliver a defence to the respondents' counterclaim.

The Divisional Court admitted fresh evidence explaining the delay, which was largely due to the parties focusing on a companion action and the respondents' own delays in fulfilling undertakings.

The Court found the appellant met both the 'ready for trial' test and the test for explaining delay without causing non-compensable prejudice.

The appeal was allowed, the action was restored to the trial list, and the appellant was permitted to file a defence to the counterclaim.

The appellant brought a motion to admit fresh evidence on appeal.

The respondents opposed the motion on the basis that the appellant could not meet the due diligence criterion of the Palmer test.

The Divisional Court allowed the motion, finding that the interests of justice favoured admitting the evidence despite the lack of due diligence, given the uncertainty in the law, the nature of the evidence (procedural history), and the potential serious effect of denying admission.

This is a procedural appeal concerning the construction of the trial record.

The respondents sued the appellants for misappropriation of funds from an apartment building.

At trial, the trial judge relied on expert accounting evidence from the respondents' expert and refused to allow the appellants to adduce their own expert evidence late in the trial.

On appeal, the appellants sought to include in their appeal book both their own expert's report and portions of the respondents' expert's report that had not been made exhibits at trial.

A chambers judge ordered these materials excised from the appeal book.

The appellants appealed this decision to the panel.

The plaintiff brought a motion to extend the time to restore its construction lien action to the trial list and to prevent an impending administrative dismissal, pending its appeal of a previous order that refused to restore the action.

The defendants argued the motion was unnecessary because the Divisional Court has jurisdiction to set aside an administrative dismissal if the appeal succeeds.

The court agreed with the defendants, finding the motion unnecessary and dismissing it, as the appellate court's powers under the Courts of Justice Act and the Rules of Civil Procedure are sufficient to remedy any intervening administrative dismissal.

The applicants sought declarations that the respondent, the mayor of Caledon, contravened the Municipal Conflict of Interest Act by voting on land development matters in which he allegedly had a pecuniary interest.

The court found no evidence that the respondent had a direct or indirect pecuniary interest in the matters voted upon, noting that his property was located several kilometers away from the developments and any potential development of his land was decades in the future.

Both applications were dismissed.

The appellant appealed a Small Claims Court decision awarding the respondent damages for wrongful dismissal based on a continuous period of employment that included time with a previous, separate company.

The Divisional Court allowed the appeal, finding the trial judge erred in law by concluding the previous employer's obligations flowed through to the appellant.

The evidence demonstrated the two companies were separate corporate entities and the respondent had resigned from the first to join the second.

The damages award was reduced to reflect only the period of employment with the appellant.

The applicant, Saeed Yahyavi, brought an emergency motion to restrain the sale of his home by the respondent, Nadi Inc., under power of sale.

The applicant alleged that Nadi Inc. failed to disclose and account for a $250,000 payment received from a settlement in a fraudulent conveyance action, which should have been credited against the judgment debt secured by the mortgage on his home.

The court found that Nadi Inc. knowingly misstated the amount due in the notice of sale by improperly characterizing the settlement funds as punitive damages and costs rather than a realization on the judgment.

The court declared the notice of sale void and enjoined Nadi Inc. from completing the sale.

The applicant was ordered to pay $1,100,000 into court, and the issues regarding the proper amount due were referred to a Master for accounting.