Adam Wainstock

This costs endorsement followed a motion in which the plaintiff obtained leave to amend the statement of claim to add four defendants, without prejudice to their right to plead a limitation defence.

The court held that the plaintiff was successful, but not wholly successful, because the principal limitations issue remained to be determined.

Applying the Rule 57.01(1) costs factors and the fairness and reasonableness principles governing costs, the court found the amounts claimed by the plaintiff excessive and rejected substantial indemnity costs.

Partial indemnity costs of $16,000 inclusive were fixed, payable in the cause and apportioned individually among the four added defendants rather than jointly and severally.

The plaintiff brought a motion for leave to amend the statement of claim to add four individuals as personal defendants in an action concerning the conversion of crypto assets.

The proposed defendants opposed the motion, arguing the claims against them were statute-barred, disclosed no reasonable cause of action, and would cause non-compensable prejudice.

The court found that there was a genuine factual dispute regarding when the plaintiff discovered that the proposed defendants were acting in their personal capacities rather than as corporate representatives.

The court granted leave to amend the claim and add the defendants, holding that the discoverability issue should be resolved at trial and permitting the added defendants to plead the limitation period as a defence.

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.

The plaintiff, 9357-1578 Quebec Inc., brought a motion seeking the production of unredacted settlement agreements and related payment documents from a global settlement involving a transit construction project.

The plaintiff, as assignee of a subcontractor's delay claims, argued the redacted settlement amounts were relevant because the defendants had pleaded that any entitlement to delay costs was contingent on funds received from the project owner.

The court found that the plaintiff failed to establish on the evidentiary record that the redacted information was relevant to the issues in the actions.

Consequently, the motion was dismissed without prejudice to the plaintiff's right to renew the motion after examinations for discovery.

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 moving party sought leave to appeal the order of McCarthy J. dated October 17, 2024.

The Divisional Court dismissed the motion for leave to appeal in writing.

Costs were awarded to the responding parties in the all-inclusive amount of $3,000.

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 appellant brought a motion for leave to appeal an arbitration award.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the fixed amount of $3,300.

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.

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

The court held that while it had jurisdiction to hear the appeal, the Arbitration Act applied because the Tarion Addendum constituted an arbitration agreement that did not specify appeal rights.

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

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 appealed an arbitration and cost award under the Ontario New Home Warranties Plan Act.

At the outset of the hearing, the Divisional Court raised preliminary questions regarding its jurisdiction to hear the appeal and whether leave to appeal was required under the Arbitration Act, 1991.

The court adjourned the hearing and directed the parties to provide written submissions on these jurisdictional issues.

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 appellants appealed a Small Claims Court judgment that awarded the respondent contractor payment for construction framing work, including 'extras', and partially allowed the appellants' counterclaim for deficiencies.

On appeal, the appellants argued the trial judge inverted the burden of proof, misapprehended evidence, and made unsupported credibility findings.

The Divisional Court dismissed the appeal, finding no inversion of the burden of proof and no palpable and overriding errors in the trial judge's factual or credibility assessments.

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.