Albert M. Engel

The plaintiff demolition subcontractor brought a lien action for unpaid work, and the defendant general contractor counterclaimed for damages caused when the plaintiff severed an underground electrical duct bank, causing a power outage at a wastewater treatment plant.

The court found the plaintiff breached its subcontract and was negligent by failing to review drawings, obtain locates, and follow its own demolition plan.

However, the court also found the defendant 15% contributorily negligent for failing to communicate its knowledge of the duct bank to the plaintiff.

The plaintiff's lien claim was offset against 85% of the defendant's damages, resulting in a net judgment payable by the plaintiff to the defendant.

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 moving parties, Soil Engineering, Bernard Lee, and Priestly Demolition Inc., brought a motion to strike the plaintiff's statement of claim against them for disclosing no reasonable cause of action, or alternatively, to dismiss the action as frivolous, vexatious, or an abuse of process.

The self-represented plaintiff's claim primarily focused on the Town of Newmarket's alleged frustration of his efforts to obtain building permits.

The court found that the statement of claim contained no allegations of wrongdoing against the moving parties and struck the claim against them.

However, the court granted the plaintiff leave to amend, finding it was not the clearest of cases to deny leave.

The court declined to dismiss the entire action as frivolous or vexatious, noting that some claims against the Town might have a reasonable possibility of success.

The plaintiff sued its former defence counsel for professional negligence and negligent misrepresentation, alleging the lawyer misrepresented a settlement offer from the Crown in an underlying environmental prosecution, which led the plaintiff's insurer to cap coverage.

The defendants moved for summary judgment.

After a mini-trial to resolve credibility issues, the court found that the lawyer accurately reported the conditional nature of the settlement discussions and did not misrepresent the offer.

The court also found no conflict of interest and held that the lawyer acted reasonably and upon instructions in providing a case assessment memorandum to the insurer.

The summary judgment motion was granted and the action dismissed.

The Crown appealed a sentence imposed on a winery corporation that pleaded guilty to discharging material into a watercourse in violation of the Ontario Water Resources Act.

The trial judge imposed a fine of $600, invoking section 59(2) of the Provincial Offences Act to relieve the defendant from the statutory minimum fine of $25,000.

The appeal judge increased the fine to $5,000, still below the minimum.

The Court of Appeal allowed the Crown's appeal and imposed the minimum fine of $25,000, holding that section 59(2) must be applied with appropriate restraint to avoid undermining the deterrent purpose of minimum fines in public welfare legislation.

The plaintiff brought a motion for a status hearing under Rule 48.14(5) of the Rules of Civil Procedure to prevent the dismissal of its action for delay.

The defendants opposed the motion, seeking dismissal of the action against them.

The court found that the plaintiff provided an acceptable explanation for the litigation delay, which included ongoing settlement discussions and issues related to the decommissioning of a gas station site.

The court also determined that the defendants would suffer no non-compensable prejudice.

Consequently, the motion was granted, the action was allowed to proceed, and a timetable for the remaining steps was ordered.

No costs were awarded for the motion.

The appellants appealed decisions of the Environmental Review Tribunal confirming the director's issuance of renewable energy approvals for two wind turbine projects.

They argued that section 145.2.1 of the Environmental Protection Act requires a two-step process shifting the onus to the approval-holder, that the tribunal erred in rejecting the material contribution test for causation, and that they were denied procedural fairness when an adjournment was refused.

The Divisional Court dismissed the appeals, finding that the statute imposes a single onus on the appellants to prove harm, the material contribution test was properly rejected, and the tribunal reasonably exercised its discretion in denying the adjournment.

Suncor Energy Products Inc. brought an application to quash several municipal by-laws passed by the Town of Plympton-Wyoming that restricted the development of a wind farm project.

The court found that By-Law 50 of 2012 was invalid for vagueness and uncertainty, and conflicted with provincial legislation regarding renewable energy approvals.

The court also quashed portions of By-Law 6 of 2012 relating to building permit fees and security deposits, and portions of By-Law 75 of 2012 imposing development charges for wind turbines, finding them ultra vires.

The court declared that the Town's zoning by-laws passed under the Planning Act did not apply to the renewable energy undertaking.

The appellant, Consbec Inc., appealed a sentencing decision arising from a guilty plea to permitting a blast that carried fly rock beyond the limits of a quarry property in violation of the Environmental Protection Act.

The trial Justice of the Peace imposed a fine and a restitution order of $10,000 to compensate for damage to a neighboring well.

The appellant challenged the qualification of the Crown's expert witness and the sufficiency of reasons for the decision.

The appeal court upheld the trial decision, finding that the expert qualification was properly exercised and that the reasons, while not extensive, were sufficient to support the conclusion that the blast caused damage to the well water quality.