Salvatore Mannella

The appellant appealed an order of a case management Master striking its defence of set off and counterclaim due to repeated breaches of court orders and failure to produce documents.

The Divisional Court applied the standard of review for discretionary orders of a Master, finding that the Master had ample evidentiary basis and applied the correct legal principles.

The appeal was dismissed, as the Master's decision to strike the pleadings to prevent trial delay and prejudice to the respondent was justified.

Following earlier findings that the respondent parent had frustrated court‑ordered access and had been found in contempt, the court considered whether the contempt had been purged and whether sanctions such as suspension of child support or probationary conditions should be imposed.

Evidence showed that several access visits eventually occurred and the child, now 15, expressed a preference to arrange contact directly with the father.

The court found the respondent had made genuine efforts and successfully purged the contempt.

The court declined to suspend child support and ordered that future access be arranged directly between the child and the father, with the respondent facilitating transportation and encouraging the relationship.

Costs of $20,000 were awarded to the applicant due to the respondent’s unreasonable conduct that necessitated repeated court attendances.

The appellants operated a trucking business on an unpaved lot adjacent to the respondents' lighting manufacturing facility.

Airborne dust from the trucks caused a substantial and unreasonable interference with the respondents' business, leading to a trial judgment for nuisance and trespass, including significant damages for lost productivity.

On appeal, the Court of Appeal upheld the finding of liability in nuisance but set aside the damages awards for lost productivity.

The Court found that the trial judge erred in principle by devising his own formula to quantify the lost productivity damages, which was not supported by the evidentiary record and deprived the appellants of the opportunity to challenge it.

A new trial was ordered limited to the assessment of lost productivity damages.

In a complex construction lien dispute involving multiple related actions arising from the redevelopment of a municipal facility, several parties brought a motion to vary a prior case management order to establish a trial sequence.

The consolidated litigation involved lien claims, bond claims, and related economic loss and trust claims among a municipality, a general contractor, sub‑trades, architects, and bonding parties.

The moving parties sought to try the sub‑trades’ lien claims first, followed by the general contractor’s lien claim and then the remaining actions.

The court held that a case management judge has broad procedural authority under Rule 77 to manage litigation efficiently and may vary earlier procedural orders where new circumstances arise.

Considering a conditional settlement offer and the potential for significantly shortening the litigation, the court granted the motion and ordered the proposed trial sequence.

In a family law proceeding concerning parenting time, the court considered whether the respondent had purged a prior finding of contempt related to failure to facilitate access between the child and the applicant father.

Evidence showed that although the child was brought to the access location, arrangements were made for adult siblings to immediately retrieve him, preventing any meaningful access.

The court found the respondent had not purged her contempt and had conspired to frustrate the access order.

The court emphasized the Divorce Act principle promoting maximum contact between children and both parents and expressed concern about ongoing obstruction of access.

The matter was adjourned to permit the respondent to show cause why child support should not be suspended as a sanction and to provide financial disclosure.

The plaintiff brought a motion under Rule 30.10 of the Rules of Civil Procedure seeking production of financial records from a non‑party corporation, including financial statements, shareholder agreements, and accounting records.

The plaintiff argued the records were necessary to quantify damages arising from alleged breach of an oral employment agreement and fiduciary duties by former employees who allegedly diverted business.

The court held that production from a non‑party is exceptional and requires proof of relevance to a material issue and unfairness if production is denied.

Because the plaintiff elected to claim disgorgement of profits only from the named defendants and not the non‑party corporation, and there was no evidence that customers were diverted to the non‑party, the relevance requirement was not met.

The court further found the motion attempted to circumvent an earlier ruling denying the addition of the non‑party as a defendant due to the limitation period.

The motion for non‑party production was dismissed.

The applicant brought a motion for contempt alleging that the respondent failed to comply with a court order requiring her to transport the parties’ child to an access visit with the father.

The respondent argued that the child refused to attend and that she encouraged him but could not physically force him.

The court held that a custodial parent must require a child to attend court‑ordered access despite the child’s stated wishes, and that merely asking or encouraging the child is insufficient.

The evidence demonstrated that the respondent failed to take reasonable steps to comply with the order, including failing to personally transport the child or arrange alternative transportation when offered.

The respondent was found in contempt of court under Rule 31 of the Family Law Rules.

The plaintiff and other lien claimants sought a determination of the basic holdback amount under the Construction Lien Act following the sale of a partially completed retirement home project by the defendant mortgagee.

The mortgagee argued the holdback was reduced by payments made to sub-trades during construction.

The court found that the owner violated section 25 of the Act by releasing holdback funds before certificates of completion were issued, and that such a breach could not be cured retroactively.

The court fixed the basic holdback at the full 10% of the value of services and materials provided, plus applicable GST.

Following a family law trial concerning access and household items, the successful party sought costs on a partial indemnity basis.

The court reviewed the applicant’s costs outline and found the claimed amount reasonable.

The respondent, who was self‑represented, filed extensive submissions largely addressing issues unrelated to the matters litigated at trial.

The court awarded the applicant partial indemnity costs for the trial in the amount claimed.

Following a family law trial concerning parenting issues after separation, the court addressed disputes regarding access between the father and the parties’ youngest child.

Evidence demonstrated a high-conflict relationship between the parents and a significant deterioration in the father–child relationship, with the court finding the custodial parent had not sufficiently fostered the children’s relationship with the father.

Applying the maximum contact principle under s. 16(10) of the Divorce Act, the court imposed a structured access schedule, ordered family therapy to rebuild the parent‑child relationship, and included police enforcement provisions for the access order.

The court also addressed disputes over household property allegedly left at the respondent’s residence and ordered partial compensation to the applicant.

The matter was scheduled for review to monitor implementation of the access arrangements.

The plaintiff corporation sued the defendants for approximately $180,000 for unpaid invoices.

The defendants brought a motion for security for costs, which was initially dismissed on the basis that it would defeat the plaintiff's claim.

On appeal, the Divisional Court found that the motion judge erred by failing to consider whether the plaintiff had access to funds through its sole shareholder.

The court determined that the plaintiff was not impecunious in the extended sense and ordered the plaintiff to post $50,000 in security for costs.

The appellant appealed a motion judge's order to sell a commercial property under the Partition Act.

The appellant claimed an oral agreement existed where the respondent relinquished her 50% interest in exchange for grocery store inventory.

The Divisional Court found the motion judge erred by not allowing a further affidavit and by not ordering a trial of an issue regarding ownership, as the doctrine of part performance might defeat the Statute of Frauds.

The appeal was allowed in part, and a trial of an issue was ordered.

The appellant appealed a trial judge's decision, challenging three findings of fact and the valuation of a motor vehicle claim.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings were supported by the evidence and that it was open to the trial judge to find the appellant exceptionally unreliable and the motor vehicle claim unproven.

The appellant husband appealed a spousal support order of $1,800 monthly for ten years, arguing the respondent wife had waived support in their marriage contract.

The motions judge found the waiver resulted in unconscionable circumstances under s. 33(4) of the Family Law Act, as the husband had required the wife to quit her job as an exotic dancer, leaving her in poverty while he maintained a wealthy lifestyle.

The Divisional Court dismissed the appeal, finding the motions judge properly considered the wife's lack of employment prospects, her immigration status, and the unconscionable result of the contract, and did not err in ordering ten years of support.