Adam Wainstock

The appellant appealed a discretionary decision declining to enforce a settlement.

The motion judge had found that there was a mistake with respect to the performance of the settlement, making its enforcement unjust.

The Divisional Court dismissed the appeal, holding that the motion judge made no error in principle and that mistakes justifying a refusal to enforce a settlement are not restricted to mistakes in the formation of a contract.

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.

The defendant Focal Elements Ltd. brought a motion seeking a declaration that the plaintiff 9448616 Canada Ltd.'s construction lien had expired, an order discharging the lien, and dismissal of 944's action in its entirety.

Focal also sought the return of funds posted as security.

The grounds for the motion included 944's failure to set the action down for trial or obtain a trial order within two years of commencing the action, as required by the Construction Lien Act, and non-compliance with a prior court order to appoint new counsel or obtain leave to be self-represented.

The court granted Focal's motion, finding that the lien had expired due to non-perfection and that 944 had failed to comply with the prior order.

The action was dismissed, and the security funds were ordered to be returned to Focal.

The defendants, TVM Sault Inc. and TVM Construction Management Inc., sought leave to bring a motion compelling the plaintiff, Focal Elements Ltd., to post security for costs under Rules 56.01(1)(d) and (e) of the Rules of Civil Procedure.

The court granted leave, finding that TVM had established a good reason to believe Focal had insufficient assets in Ontario to pay costs.

While Focal's claim was not deemed frivolous or vexatious, Focal failed to demonstrate impecuniosity or sufficient assets to satisfy a cost order.

The court ordered Focal to pay $10,350 as security for costs for the period up to and including examinations for discovery, applying a "rough justice" discount to the quantum requested by TVM due to lack of particulars and overlap with a counterclaim.

The applicant sought an order requiring the respondent to submit to arbitration regarding a dispute over the supply and installation of guardrails for a condominium project.

The parties had initially agreed to arbitrate but failed to sign a formal agreement due to disagreements over the scope of discovery.

After a tolling agreement was signed but not received by the applicant due to an email error, the applicant commenced a breach of trust action.

The respondent then argued the arbitration agreement was revoked and sought to resolve all issues in litigation.

The court found that a valid, unwritten arbitration agreement existed and had not been revoked, ordering the parties to proceed to arbitration.

Following a decision confirming a Master's Report with a minor variation and dismissing both the plaintiff's motion to oppose confirmation and the defendant's conditional opposition, both parties sought costs.

The plaintiff sought partial indemnity costs, while the defendant sought partial or substantial indemnity costs.

The court found that success was divided, as neither party achieved their primary aspirations on the motions.

Consequently, the court ordered that there be no order as to costs.

The plaintiff subcontractor and the defendant owner both brought motions opposing the confirmation of a Master's Report in a construction lien reference.

The Master had found that the subcontractor repudiated the contract by abandoning the project and was not entitled to further payment or extras, but found the subcontractor and general contractor jointly liable to the owner for delay damages.

The Superior Court confirmed the Master's Report in most respects, finding no palpable and overriding error in the Master's conclusions regarding repudiation and extras.

However, the court varied the Report to strike the award of delay damages against the subcontractor, as there was no contractual relationship between the subcontractor and the owner to support such a claim.

This decision addresses the costs for the successful defence of Donna Hixson against a claim brought by Elena Modanese.

Ms. Hixson had previously been awarded $15,000 for a successful summary judgment motion dismissing the claim against her.

She sought additional costs for the overall defence of the action, submitting a bill for $33,781.94 (after deducting the prior award).

Elena Modanese argued for an additional award of $2,000.

The court reviewed the bill of costs and, applying established criteria, awarded Ms. Hixson an additional $20,000, bringing her total costs award to $35,000, inclusive of fees, disbursements, and taxes.

The appellant subcontractor appealed a motion judge's decision dismissing its claim for payment for extra work performed on two construction projects.

The contract required written authorization for any changes or extras.

The appellant argued that the respondent general contractor waived this requirement by verbally requesting the extra work and signing purchase orders confirming the work was done.

The majority of the Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the respondent's conduct did not amount to an unequivocal and conscious decision to abandon its right to rely on the strict terms of the contract.

A dissenting judge would have allowed the appeal, finding that the respondent's pattern of requesting extra work outside the scope of the contract constituted waiver by conduct.

Elena Modanese sued her son Sante Modanese and his common-law spouse Donna Hixson, alleging fraud, unjust enrichment, and breach of fiduciary duty, primarily concerning misappropriated funds and mortgages on her property.

Ms. Hixson moved for summary judgment to dismiss the claims against her, denying wrongdoing and asserting no complicity in Sante's alleged fraudulent activities.

The court found no evidence that Ms. Hixson benefited from the mortgage or knowingly aided Sante's alleged misappropriations, and that any benefits she received were vastly outweighed by her mortgage and insurance payments.

The motion for summary judgment by Ms. Hixson was granted, and the action against her was dismissed.

The plaintiff structural steel subcontractor registered a construction lien and sued the general contractor and the owner for unpaid invoices and extras on a fixed-price contract.

The subcontractor had abandoned the project prior to completion due to non-payment.

The court found that the subcontractor breached the contract by walking away, as progress payments for the final phase were not yet due.

The subcontractor's claims for extras were largely dismissed because they were not approved in advance and lacked independent proof of value.

The owner's counterclaim for delay and inspection costs was partially allowed, while the general contractor's counterclaim was dismissed for lack of evidence.

The subcontractor and general contractor were found jointly and severally liable to the owner for delay and inspection costs, setting off the small amount allowed for one extra.

The appellants appealed a summary judgment ordering them to pay the outstanding balance on a second mortgage.

They argued the mortgage action should be considered alongside a construction dispute involving the respondent, claiming duress, bad faith, and equitable set-off.

The Court of Appeal upheld the motions judge's findings that the appellants were sophisticated parties with independent legal advice, the construction project was completed within budget, and there was no bad faith or fraud.

The appeal was dismissed, and the refusal to consolidate or stay the proceedings was upheld.

The defendant brought a motion under Rule 21 for an order that it was not responsible to pay the plaintiff subcontractor for extra work that was not negotiated or confirmed in writing prior to the work being done, as required by their contract.

The plaintiff brought a cross-motion arguing the defendant varied the terms of the contract by its conduct when its site superintendent requested the work and signed purchase orders.

The court found that the defendant's failure to pay for any of the extras distinguished the case from precedents where conduct constituted a waiver.

The court held the defendant was not liable for the extra charges and awarded costs to the defendant.

The owner of a condominium construction project moved to reduce posted security and obtain summary judgment discharging or reducing a contractor’s construction lien claims.

The moving party argued the contractor’s liens should be eliminated or reduced because a subcontractor’s lien action had been dismissed, because contract prices allegedly contained PST eliminated by the introduction of HST, and because the owner paid $40,000 directly to a sub‑subcontractor.

The court held that dismissal of the subcontractor’s lien did not affect the contractor’s lien rights, as lien entitlement is based on the contract price between owner and contractor under the Construction Lien Act and not on the subcontractor’s separate claims.

The court also rejected the alleged PST credit due to insufficient evidence.

The motion succeeded only to the extent that the contractor’s liens and posted security were reduced by $40,000 corresponding to the direct payment to the sub‑subcontractor.