Vito S. Scalisi

The appellant appealed the dismissal of its action seeking a declaration that it was the beneficiary of a trust and a beneficial owner of a 50 per cent interest in a plaza.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that a binding trust agreement was never executed.

The court also rejected arguments regarding spoliation and hearsay, noting the trial judge was entitled to disbelieve the appellant's evidence.

The defendants appealed and the plaintiff cross-appealed a trial judgment finding the defendants liable for breach of a settlement agreement and breach of trust under the Construction Lien Act.

The defendants argued that the settlement agreement released the primary corporate defendants from liability, precluding a finding of breach of trust.

The Court of Appeal dismissed the appeal and allowed the cross-appeal, holding that the settlement agreement did not extinguish the primary corporate defendants' liability, as the parent company's liability was as a surety.

The trial judge's judgment was upheld.

The appellants appealed an application judge's finding that their solicitors' accounts were interim rather than final.

The Court of Appeal dismissed the appeal, holding that the determination was a question of fact and the application judge made no palpable and overriding error in concluding the accounts were interim based on the evidence.

The appellants appealed a Master's decision that dismissed their motion to amend their statement of defence and granted the respondent's cross-motion for judgment based on minutes of settlement.

The Divisional Court allowed the appeal, finding that the Master erred by hearing the final cross-motion before the interlocutory motion to amend.

The Court also held that the Master applied the incorrect test under Rule 26 by reversing the onus, as the opposing party must prove non-compensable prejudice to defeat a motion to amend.