Adam Wainstock

This is a foreclosure action on a mortgage originally given in 1993 by 830990 Ontario Ltd. to 823042 Ontario Inc., allegedly assumed by 1305268 Ontario Inc. in 2006.

The plaintiff claimed the mortgage went into default in 2011 and sought foreclosure for over $2.5 million in unpaid interest.

The defendant argued the entire claim was a fraud orchestrated by Kenneth James, a disgruntled shareholder.

The court found that the plaintiff's principal witnesses, Marco Lorenti and Kenneth James, were not credible.

The court determined that the mortgage was never renewed or validly transferred to the plaintiff, that the renewal letters and transfer document were forged, and that the plaintiff was not the valid holder of the mortgage.

The action was dismissed.

Additionally, the court found the claim was statute-barred under the Real Property Limitations Act.

Zurich Insurance Company Ltd. moved for a declaration that an Assignment Agreement between Mometal Structures Inc. and 9357-1578 Quebec Inc. was null and void, and for dismissal of three related actions as an abuse of process.

The court found that the Assignment Agreement was not precluded by the subcontract, was not a bare assignment of a cause of action, and that 9357 was not required to immediately disclose the Assignment Agreement.

Zurich's motion was dismissed.

The defendants brought a motion for security for costs against the plaintiff, Neuhaus Management Ltd. (NML), seeking $64,530.91 on a partial indemnity scale.

The motion was brought under Rule 56.01(1)(d) of the Rules of Civil Procedure, alleging NML had insufficient assets in Ontario to pay costs.

The court found that the defendants met their initial onus, relying on NML's own representations and evidence from related proceedings regarding its financial difficulties.

Applying a holistic approach, the court balanced the plaintiff's right to proceed with its claim against the defendants' right to an enforceable costs award.

The court rejected arguments that the plaintiff's claim was meritless or that the defendants delayed in bringing the motion.

Ultimately, the court ordered NML to post $30,000 in security for costs, payable in three instalments, finding this amount to be fair, reasonable, and striking the necessary balance.

This motion concerned the proper preservation of construction liens, specifically whether the lien claimants' rights were governed by the "old" 45-day period under the Construction Lien Act or the "new" 60-day period under the Construction Act.

The determination hinged on the interpretation of the Act's transition provisions, which apply if a contract for improvement or a procurement process was commenced by the owner before July 1, 2018.

The court analyzed whether certain corporate entities, which had early involvement in the project but did not hold legal title to the premises before the critical date, qualified as "owners" under the Act.

Applying corporate law principles, the court found that these entities, despite their interest in the project, did not possess a lienable interest in the land and thus were not "owners" for the purpose of triggering the old Act's transition rules.

Consequently, the new 60-day preservation period applied, and the liens were found to be properly preserved.

The non-party contractor's motion for a declaration that the liens had expired was dismissed.

The moving defendants brought motions to enforce settlement agreements dismissing two construction-related actions without costs.

The plaintiff opposed the motions, arguing the settlements were entered into due to misrepresentations, unconscionability, and misapprehension, and brought a cross-motion to join the actions to separate ongoing litigation.

The court found that a valid settlement was reached and rejected the plaintiff's arguments, noting that the alleged misrepresentations were based on double hearsay and the plaintiff was represented by capable counsel.

The court granted the motions to enforce the settlements and dismissed the cross-motion.

The parties brought a statutory appeal and cross-appeal from an arbitrator's award under the Ontario New Home Warranties Plan Act regarding a new build home purchase agreement.

The Divisional Court directed the parties to address whether leave to appeal was required as a preliminary issue.

The court held that while it has jurisdiction to hear the appeal, section 45(1) of the Arbitration Act applies because the Tarion Addendum constitutes an arbitration agreement that is silent on appeal rights.

Consequently, leave to appeal is required and the appeal is strictly limited to questions of law.

The appellants, a group of subcontractors and a bank, appealed an application judge's decision that rescission of surety bonds might be possible even if it affects innocent third parties.

The bonds were issued by Zurich Insurance Company Ltd. for a large construction project, but Zurich later discovered alleged fraudulent misrepresentations and collusion that induced it to issue the bonds.

The appellants sought a declaration that rescission was unavailable as a matter of law due to the involvement of innocent third parties.

The Court of Appeal dismissed the appeal, affirming that prejudice to third parties is not an absolute bar to rescission, especially in cases of fraudulent misrepresentation, and that such a determination requires a full factual record at trial.

The appellant brought a statutory appeal from an arbitration award under the Ontario New Home Warranties Plan Act arising from the breakdown of a purchase agreement for a new build home.

At the outset of the hearing, the Divisional Court panel directed the parties to provide written submissions on whether the court has jurisdiction to hear the appeal and whether the Arbitration Act, 1991 requires leave to appeal or limits the appeal to issues of law.

Zurich, the surety for the insolvent general contractor Bondfield, brought a motion to intervene as a party in a construction lien reference.

Zurich sought to participate in a vetting committee for the distribution of the owner's holdback among the timely lien claimants.

The court granted the motion, finding that Zurich had a direct interest in the holdback because it had made significant holdback advances to the major electrical and mechanical trades and had taken partial assignments of their lien rights.

The court ordered the timely claimants to pay Zurich's costs of $30,000.

The plaintiff moved for leave to appeal a costs decision of a Case Management Master.

The Master had set aside a noting in default and awarded costs to the defendants.

The plaintiff argued it was presumptively entitled to costs because setting aside the default was an indulgence.

The court rejected this argument, finding the plaintiff had acted unreasonably by noting the defendants in default despite knowing they were defending the action and had served their statement of defence.

The motion for leave to appeal was dismissed with costs awarded to the defendants.

The plaintiff contractor sought leave under section 67(2) of the Construction Act to bring a motion for partial summary judgment for allegedly undisputed certified draws totaling up to $1,256,400.

The defendant landlords opposed, citing a supplementary condition in the contract that required delaying dispute resolution pending the outcome of a concurrent dispute with the federal government tenant.

The court granted leave, finding the motion was necessary to clarify the contractual condition that could otherwise halt the entire proceeding, and that resolving the issue of the undisputed monies would expedite the resolution of the broader dispute.

The applicants, a syndicate of lenders and various construction trades, sought declarations that the respondent surety could not rescind performance and payment bonds issued for a hospital redevelopment project.

The surety had discovered alleged fraud and collusion in the procurement process and commenced a separate action for rescission.

The applicants argued they were innocent third parties whose rights under the bonds could not be defeated by the alleged fraud of the principals.

The court dismissed the applications, finding that the applicants' rights were derivative of the principals and that rescission remained a possible equitable remedy that must be determined on a full factual record at trial.

This decision addresses the costs of a successful motion brought by Azzam Tawachi (defendant to counterclaim) to dismiss a counterclaim against him by Athena Donair Distributors Ltd. (plaintiff by counterclaim).

The court found the motion necessary due to Athena's actions in contravening the Construction Lien Act.

Tawachi was awarded partial indemnity costs, fixed at $4,688.53, inclusive of HST, payable by Athena within 30 days.

Zenith Aluminum Systems Ltd. (Zenith) sought to enforce two arbitral awards against 2335945 Ontario Inc. cob as Momentum Developments (Momentum), totaling over $400,000.

Momentum consented to the enforcement but brought a cross-application to stay the execution of these awards pending the disposition of a separate breach of trust action and counterclaim for delay and deficiencies.

The court dismissed Momentum's application for a stay, finding that the high bar for staying final judgments under s. 106 of the Courts of Justice Act was not met.

The court rejected the argument that s. 50 of the Arbitration Act precluded a stay, but affirmed that such stays are reserved for "very rare circumstances" (e.g., oppressive conduct) or where the three-part RJR-MacDonald test for interlocutory stays is satisfied, neither of which applied here.

The court also refused to apply the less restrictive Rule 20.08, as arbitral awards are treated as final judgments, not summary judgments.

The defendant, Desjardins Global Asset Management Inc., brought a motion to dismiss the claim for lack of jurisdiction or, alternatively, to stay the action on the basis of forum non conveniens.

The court found that it had jurisdiction over Desjardins due to its physical presence and business operations in Ontario, distinguishing it from cases requiring a "real and substantial connection" analysis.

Regarding forum non conveniens, the court determined that Quebec was not "clearly more appropriate" than Ontario, as both forums were equally capable and convenient.

The motion was dismissed.

The plaintiff mother brought a motion for summary judgment against her defendant son for an outstanding loan debt, specifically seeking to enforce an alleged agreement to increase the interest rate on a portion of the debt from 5% to 10%.

The court reviewed email correspondence between the parties and a third-party lender.

The court found there was no meeting of the minds, as the son agreed to the higher interest rate only in exchange for delayed payment terms, which the mother explicitly rejected.

Consequently, the motion for the increased interest rate was dismissed, and the original 5% rate remained applicable.

The defendant Aizenstros brought a motion seeking a declaration that the plaintiff Nigeco's construction lien was invalid, arguing it was registered out of time because the contract was either terminated by Aizenstros on June 13, 2017, or abandoned by Nigeco on June 5, 2017.

Nigeco contended the contract was never completed and the lien was validly registered within 45 days of Aizenstros abandoning it.

The court found that the contract was neither abandoned by Nigeco nor terminated by Aizenstros on the dates claimed, as post-purported termination conduct, including a site visit and continued negotiations, indicated an ongoing intention to complete the project.

The court determined the contract was terminated by Nigeco on August 3, 2017, when Aizenstros failed to respond to resolution efforts.

Consequently, the lien was valid, and the defendant's motion was dismissed.

The plaintiff brought an action for damages relating to a dispute over sales commissions.

The defendants brought a motion to stay the action based on arbitration clauses in the relevant sales agreements.

The plaintiff argued the clauses were invalid due to vagueness or unconscionability.

The court found the arbitration clauses were binding, unambiguous, and not unconscionable, and stayed the action in favour of arbitration.

This decision addresses costs following an unspecified proceeding.

The court exercised its discretion to order costs on a substantial indemnity basis, finding the defendant Focal Elements' submissions persuasive and the requested amount reasonable.

Costs were awarded to Focal Elements, payable by the plaintiff, 9448616 Canada Ltd., in the amount of $6,836.47, inclusive of legal fees, HST, and disbursements, payable within 30 days.