Alfred Pepushaj

This decision addresses the issue of costs and pre-judgment interest following a 29-day trial concerning a dispute over the construction of a luxury custom home.

The court's prior reasons (2023 ONSC 2015) found the owners (the Kriesers) breached contracts with the builder/landscaper (the GES defendants), dismissing the Kriesers' claims and awarding outstanding amounts to the GES defendants on their counterclaim.

The GES defendants sought substantial indemnity costs and pre-judgment interest.

The court fixed pre-judgment interest, reducing it for periods of delay attributable to the GES defendants and the COVID-19 pandemic.

For costs, the court awarded the GES defendants partial indemnity costs up to their Rule 49 Offer to Settle date (November 22, 2016) and then blended costs thereafter, reflecting their complete success in the action and counterclaim.

The court declined to award substantial indemnity costs throughout, finding the Kriesers' allegations did not warrant it, and made minor adjustments for costs related to mid-trial adjournments and new counsel familiarization.

The Kriesers sued Gregory Evan Seligman and his companies (G.E.S. Construction Limited, Greenstone Gardens Inc., etc.) for breach of contract, breach of fiduciary duty, breach of duty of good faith, punitive damages, trespass, and intimidation related to the construction of a luxury custom home.

The defendants counterclaimed for unpaid accounts.

The court found that the Kriesers breached the construction and landscaping contracts by failing to make timely and sufficient payments.

All claims brought by the Kriesers were dismissed, and the counterclaims by G.E.S. Construction Limited and Greenstone Gardens Inc. for outstanding amounts were granted.

The plaintiff, Bradley J. Grant Investments Inc. (Grant), brought a motion for interim Mareva and Norwich orders against Nestig Inc. and Stephen Lee Heimbecker, along with other related parties.

Grant alleged a fraud exceeding $51 million, breach of contract, and breach of fiduciary duty, claiming that Heimbecker induced advances for specific investments but failed to provide documentation or repay funds.

Heimbecker contended the relationship was a simple debt evidenced by promissory notes and denied fraud.

The court found Grant established a strong prima facie case of fraud, breach of trust, and/or breach of fiduciary duty, primarily due to Heimbecker's failure to disclose the use of advanced funds.

The court also found a serious risk of asset dissipation, noting Heimbecker's liquidation of assets (racehorses, farm, home) and potential relocation.

The interim Mareva injunction was granted to preserve assets, and the Norwich order was granted to compel financial institutions to disclose information, as Heimbecker was the only practical source and had refused disclosure.