Adrian Visheau

This decision concerns an appeal under section 45(2) of the Arbitration Act, 1991, from an arbitral award regarding four disputes arising out of a major public-private partnership infrastructure project (Highway 427 expansion).

The appellant, His Majesty the King in Right of Ontario (as represented by the Minister of Transportation and Ontario Infrastructure and Lands Corporation), challenged the arbitral tribunal’s interpretation of the Project Agreement on four issues: the Crossfall Dispute, the Zenway Boulevard Dispute, the 407 ETR Dispute, and the 2014-2016 Dispute.

The court held that the tribunal correctly identified and applied the principles of contractual interpretation, found no extricable errors of law, and dismissed the appeal.

This motion for directions was brought by the Receiver of Unit 417 in a condominium project to determine whether the purchaser, Gerald Rasmussen, was entitled to clear title despite having prepaid the final balance of his purchase price directly to the developer, Brightstar, rather than into a deposit trust account.

The Guarantee Company of North America (GCNA), a secured creditor, opposed, arguing Rasmussen's payment was not bona fide and its mortgage should prevail.

The court found Rasmussen to be a bona fide purchaser for value, ruling that his payment, though structured as a loan, was the final purchase price payment under the agreement of purchase and sale.

The court determined that the APS did not prohibit direct payment to the vendor for the final balance and that GCNA's mortgage did not take priority over Rasmussen's interest.

The Receiver was directed to close Rasmussen's purchase and vest clear title in his name.

Capital Sewer Servicing Inc. appealed a Superior Court decision that found it liable to indemnify and defend Crosslinx Transit Solutions Constructors under a subcontract.

The dispute arose from property damage claims by third parties during a light rail transit project.

Capital argued that Crosslinx, by undertaking to provide wrap-up insurance, had assumed the risk of such damages, and that the "hold harmless" clause did not include a duty to defend.

The Court of Appeal dismissed the appeal, affirming that a covenant to insure does not, as a matter of law, automatically transfer risk.

The court emphasized that contractual intent is derived from a holistic reading of the agreement, and found the subcontract's express indemnity provisions, coupled with the mutual intent clause, clearly imposed the obligation on Capital.

The "hold harmless" provision was also found to include a duty to defend, given the broad definition of "Claims" in the contract.

The plaintiffs brought a motion for an interlocutory injunction to prevent the defendants from transferring or encumbering a partnership property without consent or court order.

The dispute arose after the plaintiff was disqualified as a partner for failing to satisfy a cash call, which he alleged was invalid.

The court characterized the requested relief as a mandatory injunction, requiring the plaintiffs to demonstrate a strong prima facie case.

The court found the plaintiffs failed to establish a strong prima facie case regarding the validity of an alleged oral agreement, the invalidity of the cash call, or oppressive conduct.

Furthermore, the plaintiffs failed to show irreparable harm, as damages would be an adequate remedy.

The motion for an injunction was dismissed.

This application concerned a dispute over contractual indemnity and duty to defend obligations between a general contractor (Crosslinx) and its subcontractor (Capital Sewer Servicing Inc.) following property damage claims related to a construction project.

Capital argued that a "Wrap Up" insurance policy, under which it was a Named Insured, negated its indemnity obligations.

The court rejected Capital's argument, emphasizing that specific indemnity provisions in the subcontract took precedence over general insurance clauses, and that the requirement for Capital to obtain its own liability insurance implied an assumption of risk for its negligence.

The court granted Crosslinx's application, confirming Capital's duty to indemnify and defend, and dismissed Capital's cross-application.

This decision addresses costs arising from the dismissal of two actions by Nanak Homes Inc. for delay.

The court found Nanak's conduct reprehensible due to significant, unexplained delays and failure to advance litigation, which warranted substantial indemnity costs.

The court also granted Kamco an indemnity against Nanak for third-party costs, concluding that Kamco reasonably joined third parties given Nanak's unparticularized claims.

Claims for non-party costs against LawPRO were dismissed as neither the "person of straw" test nor abuse of process was established.

Various defendants and third parties were awarded costs against Nanak, totaling $139,155.24.

The defendants moved to dismiss the plaintiff's two construction defect actions for delay.

The actions were commenced in 2011 and 2012 but had not progressed to discoveries.

The plaintiff's former counsel claimed a 'mental block' prevented him from advancing the files, and the plaintiff's principal claimed ignorance of the delay.

The court found the delay was inordinate and inexcusable, noting the plaintiff's principal failed to monitor the litigation.

The court also found actual prejudice to the defendants, including the death of a key witness.

The motions were granted and the actions dismissed.

Following the dismissal of the plaintiffs' action on summary judgment, the defendant bank sought costs on a substantial indemnity basis.

The court found the action was an abuse of process as it attempted to relitigate issues decided in an earlier proceeding.

The court awarded substantial indemnity costs to the defendant but reduced the quantum claimed, finding the hours spent on preparation excessive.

Costs were fixed at $9,717.65 inclusive of disbursements and HST.

The defendant bank brought a motion to strike the plaintiffs' action under Rules 21.01(1)(b) and 21.01(3)(d) of the Rules of Civil Procedure.

The plaintiffs had previously sued the bank in a separate action arising from a mortgage dispute, which was dismissed.

In this new action, the plaintiffs claimed damages for abuse of process, harassment, and intentional infliction of emotional distress based on the bank's conduct in the prior litigation.

The court granted the motion to strike, finding the new action was an abuse of process and an attempt to relitigate issues that were or should have been raised in the previous proceeding.

The court also held that the claim disclosed no reasonable cause of action, as the stress of litigation is not independently compensable.

The defendant bank moved for summary judgment dismissing the plaintiffs' claim and granting its counterclaim for outstanding loan balances and possession of the mortgaged property.

The plaintiffs alleged a bank teller misappropriated a cash payment, claiming this fundamental breach extinguished their debt obligations.

The court found no evidence that a cash payment was made, concluding the teller merely made a transactional error that caused no loss.

Finding no genuine issue for trial, the court dismissed the plaintiffs' claim and granted summary judgment to the bank on its counterclaim.