Allison Pressé

Trac Developments Inc. ("Trac") moved for an order declaring DNR Restoration Inc.'s ("DNR") construction lien expired due to untimely preservation or, alternatively, reducing the posted security.

The court first determined that the "old" Construction Act applied based on the project's earliest contract date.

Regarding timeliness, the court found genuine issues requiring a trial, as Trac failed to prove DNR abandoned the contract before the lien registration period expired.

On the security reduction, while DNR conceded a significant reduction from its initial claim, Trac's further requested reductions for work orders, May-August work, and rebar accessories were also found to involve triable issues.

Consequently, the motion to declare the lien expired was dismissed, and the security was reduced only to the amount DNR had already conceded plus security for costs.

No costs were awarded due to the mixed success and DNR's initial inflated lien claim.

Following a successful summary judgment motion dismissing the plaintiffs' action, the defendant TD sought partial indemnity costs of $231,077.50.

The plaintiffs argued for a reduction based on the principal plaintiff's impecuniosity, the novelty of the case, and excessive time claimed.

The court found that while the plaintiff's financial circumstances warranted some moderation, the novelty of the case did not justify a reduction as basic negligence principles applied.

The court also found some of TD's claimed time excessive, but noted the plaintiffs' conduct caused significant delay.

The court awarded TD costs of $130,000 inclusive of disbursements and HST.

This is an appeal from an order dismissing a motion to validate late service of a statement of claim and extend the time for service in a motor vehicle accident action.

The appellant's former counsel failed to serve the defendants within the prescribed six-month period due to inadvertence.

The motion judge refused to admit a supplementary affidavit and dismissed the motion, finding insufficient explanation for delay and prejudice to the respondents.

The Court of Appeal found that the motion judge erred in finding insufficient explanation for delay, as it was due to counsel's inadvertence.

Furthermore, the motion judge erred in the prejudice analysis by failing to consider that the respondents' insurer had notice of the accident and the appellant's involvement, which shifted the onus to the respondents to prove prejudice.

The Court of Appeal allowed the appeal, validated the late service, and extended the time for service on unserved defendants, with a term regarding pre-judgment interest.

The plaintiff was severely assaulted by another customer in the vestibule of a TD Bank ATM late at night.

The plaintiff sued TD Bank for negligence and breach of the Occupier's Liability Act, alleging inadequate security measures.

TD brought a motion for summary judgment to dismiss the action.

After conducting a voir dire to determine the admissibility of five expert reports, the court found that the assault was a random, unforeseeable event and that TD's security measures were reasonable for a low-risk branch.

The court granted summary judgment and dismissed the action against TD.

The moving party, Fraser Johnston, sought leave to appeal the order of Ramsay J. dated May 31, 2021.

The Divisional Court dismissed the motion for leave to appeal.

Costs were fixed at $4,262.50 and awarded to the responding party, Heartland Farm Mutual Insurance Company, payable by the moving party.

The defendant estate moved for summary judgment in a motor vehicle accident claim, arguing that the deceased owner could not have been driving the offending vehicle and had not consented to anyone else possessing it.

The plaintiff's insurer opposed the motion, presenting hearsay evidence that the owner's son had previously driven the car and may have had implied consent.

The court dismissed the motion, finding that a trial was necessary to assess the credibility of witnesses and determine whether the driver had possession of the vehicle with the owner's consent.

The third party, Fasco Motors Limited, sought costs following its substantial success on a motion to compel the defendant, Venmar Ventilation Inc., to answer refusals from an examination for discovery.

The underlying action involved a fire loss allegedly caused by a malfunctioning heat recovery ventilator.

The court awarded the third parties costs on a partial indemnity scale, fixing fees at $5,000 and disbursements at $4,600, inclusive of HST.

The third parties brought a motion to compel the defendants to answer questions and provide undertakings refused during the examination for discovery of the defendants' witness.

The underlying action involves a house fire allegedly caused by a heat recovery ventilator manufactured by the defendants, which contained a motor manufactured by the third parties.

The court ordered the defendants to answer the majority of the refused questions, finding them relevant to the adequacy of the defendants' safety upgrade program and their appreciation of the fire risk.

The defendant sought to proceed with a summary judgment motion, but an issue remained regarding the cross-examination of experts.

The plaintiff argued the matter was too complicated for summary judgment and should proceed to trial.

The court rejected this argument, holding that the defendant was entitled to have its motion heard.

The court directed that the experts be cross-examined in open court on all issues relating to their reports, not just their qualifications, to allow the court to exercise its gatekeeper function regarding the admissibility of the evidence.

This decision addresses the costs of a prior motion concerning the plaintiff's requests for additional documents and answers to undertakings and refusals.

The plaintiff sought partial indemnity costs, arguing for divided success as fourteen questions were ordered answered.

The defendant sought substantial indemnity costs, citing the plaintiff's unreasonable conduct in attempting to re-litigate proportionality issues, asking questions beyond the scope of follow-up undertakings, and providing an incomplete motion record.

The court found the defendant largely successful on the substantive issues, particularly regarding the plaintiff's attempts to re-litigate and expand the scope of discovery.

While the plaintiff achieved some success in obtaining answers to specific questions, the overall conduct and the defendant's success on major points warranted a costs award against the plaintiff.

The court ordered the plaintiff to pay the defendant $2,500.00 in costs.

This endorsement addresses the plaintiff's late service of three expert reports, despite previous directions for one, in advance of a summary judgment motion.

The court expressed concerns about delay and good faith, cancelling a conference call and directing an in-person appearance to determine the admissibility of the reports, the plaintiff's reliance on multiple experts, and potential schedule adjustments.

This endorsement addresses a case management motion concerning outstanding follow-up questions from discovery and the timing of the plaintiff's expert report.

The plaintiff sought further answers from the defendant, TD Canada Trust, regarding security protocols and risk assessments following an alleged assault at an ATM vestibule.

The court applied principles of proportionality and finality, rejecting many of the plaintiff's requests for information deemed beyond the scope of appropriate discovery or based on information that should have been obtained earlier.

The court also found the plaintiff responsible for significant delays in the litigation and ordered the expert report to be produced promptly, with strict timelines, while allowing for a supplemental report if new information warranted it.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action arising from a trip and fall over a black cable in a gym weight room.

The court found numerous conflicting factual issues regarding the location of employees, the visibility of the cable, and whether a liability waiver was brought to the plaintiff's attention.

Concluding that a fair and just determination could not be made on the documentary record, the court declined to use its expanded fact-finding powers and dismissed the motion, awarding costs to the plaintiff.

The Plaintiff sought leave to bring a Rule 30.10 motion for third-party records production from other banks, which the Defendant opposed.

The court found the Plaintiff's delay in bringing the motion unreasonable due to counsel's dilatory conduct in retaining and instructing an expert.

Despite the unreasonable delay and potential for further adjournment of the summary judgment motion, the court reluctantly granted leave to the Plaintiff to bring the motion on terms, including payment of costs to the Defendant, to avoid prejudicing the Plaintiff due to counsel's failures.