Alfred J. Esterbauer

The appellants registered construction liens against the respondent's property for the design and installation of a custom-designed truck frame assembly line.

The trial judge held that the assembly line did not meet the definition of an 'improvement' under the Construction Lien Act, as it was portable and not an integral part of the building.

The Divisional Court dismissed the appeal.

The Court of Appeal upheld the lower courts' decisions, finding no palpable and overriding error in the trial judge's factual determination that the assembly line was not an improvement.

The appellants appealed a decision declaring their option to purchase a residential parcel of farmland void for contravening section 50 of the Planning Act.

The appellants had sold a 74-acre farm but entered into an option agreement to purchase back the residential portion.

The Court of Appeal held that the option agreement violated section 50(3) because the grantor retained abutting lands not within a registered plan of subdivision.

The Court further found that the agreement lacked an express condition requiring compliance with the Planning Act under section 50(21), and declined to rectify the contract due to a lack of evidence of a prior oral agreement to include such a condition.

The appeal was dismissed.

Following the dismissal of their appeals regarding construction lien rights, the appellants and respondents made written submissions on costs.

The Divisional Court fixed the respondent Rumble's costs at $20,515.72 on a partial indemnity basis, payable by Cassidy and R & A. The court found the respondent Dana's claim for $41,024.52 excessive given the lack of novel arguments on appeal, and fixed Dana's costs at $15,800.00, payable by Kennedy.

The appellants appealed a trial judgment declaring that their claims for work done in assembling and installing a massive truck frame assembly line at the respondent's plant were not lienable under the Construction Lien Act.

The trial judge found that the assembly line was manufacturing equipment and not an 'improvement' to the land or building.

The Divisional Court majority upheld the trial judge's decision, finding no error in his application of the law to the facts.

A dissenting judge would have allowed the appeal, finding the assembly line was an improvement given its size, cost, and degree of attachment to the premises.

The moving parties, two directors who were removed from the board of a company undergoing restructuring under the Companies' Creditors Arrangement Act, sought an order expediting the hearing of their motion for leave to appeal the removal order.

The court granted the motion to expedite, finding that the fast-moving and unpredictable nature of CCAA proceedings required a generous view of urgency to provide the board with certainty regarding its composition during a critical phase of restructuring.

The respondent sought costs of the appeal on a partial indemnity scale in the amount of $14,576.70.

The appellant argued the amount was excessive and suggested $3,500.

Applying the principle that costs must be fair and reasonable and not merely a mathematical calculation, the court fixed the respondent's costs at $7,000 all inclusive on a partial indemnity basis.

The appellants appealed an order striking their pleading against a law firm for failing to disclose the tort of intentional interference with contractual relations.

The Court of Appeal upheld the motion judge's determination that the pleading lacked the necessary elements of an intention to injure the appellants and the use of unlawful means.

The appeal was dismissed with costs.

The appellant registered a construction lien and commenced an action while it was a dissolved corporation.

It was later revived.

The motion judge vacated the lien but allowed the contract claim to continue.

The Divisional Court dismissed the lien appeal and dismissed the contract action.

The Court of Appeal held that the appellant could not rely on the corporate revival provisions of the Business Corporations Act to revive its lien action because the strict time limits under the Construction Lien Act had expired during dissolution, vesting 'rights' in the defendant.

However, the Court allowed the breach of contract claim to proceed, as the limitation period had not yet expired, permitting the appellant to amend its pleadings to correct the corporate misnomer.

The appellant appealed an order dismissing his solicitor negligence action for delay under Rule 24.01(1).

This was the appellant's third action dismissed for delay, stemming from a 1956 construction contract dispute.

The Court of Appeal found no error in the motion judge's findings that the appellant was responsible for the delay, that there was no justifiable excuse, and that the defendants suffered prejudice.

The appeal was dismissed.

The appellant appealed an order dismissing its action for delay.

The Court of Appeal found that the motions judge erred in principle in finding prejudice due to inexcusable delay, as the prejudice alleged was general in nature and there was no evidence of missing or incapacitated witnesses.

The appeal was allowed and the order set aside, but without prejudice to the respondent to move again if the appellant failed to answer undertakings within thirty days.

Costs of the appeal and motion were awarded to the respondent.

The appellants appealed an order of the Master dismissing their motion to extend the time for service of the statement of claim.

The Divisional Court allowed the appeal, finding that the Master erred by focusing entirely on the length of delay and the expiry of the limitation period rather than whether the respondents were prejudiced.

Applying the principles from Chiarelli v. Wiens, the court found no evidence of prejudice to the respondents, as their insurers were involved early, copies of the claim were mailed, and medical reports were provided.

The appeal was allowed and the time for service was extended.

The appellant appealed an order of the Master dismissing its action for want of prosecution.

The Master found an inexcusable 12-year delay in bringing the action to trial, including a five-year delay after the limitation period expired, which raised an unrebutted presumption of prejudice.

The Divisional Court dismissed the appeal, holding that the Master made no palpable and overriding error in applying the law or assessing the facts, and that the respondent's failure to spur the action along did not preclude dismissal.

The appellant appealed an order dismissing his action for failing to pay previously ordered costs and security for costs.

The appellant argued there were procedural deficiencies in how the dismissal order was obtained.

The Court of Appeal found no procedural defects, noting the appellant had been expressly warned that failure to comply by the deadline would result in dismissal without further notice.

The appeal was dismissed with costs.

This was a costs endorsement following a civil appeal in which one appellant was fully successful and another reduced its liability to 20 percent of the plaintiffs’ damages.

The court applied the usual rule that costs follow the event, awarded the successful appellant its assessed trial costs against the plaintiffs, and upheld the trial judge’s costs award against the partially successful appellant despite the modest damages award and absence of a Rule 49 offer.

The court declined to make either a Bullock or Sanderson order.

Both appellants were awarded their party-and-party costs of the appeal.