Anderson Knox Grossman

The plaintiff, a subcontractor on the Finch West LRT project, sought leave to bring motions for partial summary judgment on its claims for unpaid invoices and holdback, and to dismiss or stay the defendants' set-off claims and counterclaims for failure to prove damages, and to determine the applicability of a contractual limitation of liability clause.

The defendants opposed leave, arguing that partial summary judgment would introduce procedural complexity and delay trial.

The court granted leave, finding that the proposed motions would expedite resolution of issues in dispute, particularly given that liability and damages are separate issues and that the court, as both motions judge and trial judge in the Construction Act reference, could manage any concerns about inconsistent findings.

The plaintiff, Bay-Yorkville Developments Ltd. (BYDL), brought a motion to consolidate its action against Ferguson-Neudorf Glass Inc. (FNG) with a pre-existing main action involving Toronto Standard Condominium Corporation No. 2282.

FNG opposed the consolidation and sought to schedule a summary judgment motion on limitations grounds.

The court granted the consolidation, finding that the actions shared common questions of law and fact, arose from the same transactions, and that consolidation would avoid multiplicity of proceedings and promote efficiency.

The court further ruled that FNG's summary judgment motion should be heard only after discoveries were completed, emphasizing the need for a comprehensive record in complex construction litigation.

The defendants in three related construction lien and non-lien actions moved for security for costs against the plaintiff subcontractor.

The court found good reason to believe the corporate plaintiff had insufficient assets in Ontario, as it had ceased operations and its only assets were contingent claims.

The plaintiff failed to prove impecuniosity, having provided insufficient evidence of its inability to raise funds from shareholders or affiliates.

The court ordered the plaintiff to post security for costs in the aggregate amount of $215,000 on a staged basis, reducing the defendants' requested $500,000 to account for the significant counterclaims advanced by the defendants.

The moving party contractor sought to declare two construction liens preserved by the responding party sub-subcontractor as expired.

The central issue was the interpretation of the transition provisions in s. 87.3 of the Construction Act, specifically whether the former 45-day or current 60-day lien preservation period applied when the prime contract was entered into before July 1, 2018, but the subcontracts were entered into after.

The court held that the legislative scheme applies consistently to all persons involved in the same improvement based on the date of the prime contract.

Consequently, the former 45-day period applied, the liens were declared expired, and the posted security was ordered returned.

The plaintiff brought a motion to compel the defendant Russell Madarash, in his personal capacity and as a representative of the other defendants, to attend a mandatory mediation session in Toronto in person.

The defendants argued that Mr. Madarash, residing in Regina, Saskatchewan, lacked the financial resources for personal attendance and should be permitted to attend via telephone or video conference.

The court, applying principles regarding exemptions from personal attendance at mediation, found that Mr. Madarash had not provided sufficient evidence to establish an inability to pay for travel costs.

The motion was granted, compelling Mr. Madarash to attend in person, and costs were awarded to the plaintiff.

The defendants brought a motion for a stay of proceedings based on a breach of s. 11(b) of the Canadian Charter of Rights and Freedoms, alleging unreasonable delay.

The charges arose from a stage collapse at a Radiohead concert in June 2012 that resulted in one death and injuries.

The defendants were charged in June 2013 with offences under the Ontario Occupational Health and Safety Act.

The trial commenced in November 2015 but was declared a mistrial in May 2017 when the presiding judge was appointed to the Superior Court.

The court applied the Jordan framework and found that the net delay far exceeded the presumptive ceiling of 18 months.

Although the Crown established certain discrete events and argued the case was complex, the court determined that even accounting for these exceptional circumstances, the delay remained unjustified.

The court granted the stay of proceedings for all defendants.

A provincial court judge presiding over a lengthy trial involving charges under the Occupational Health and Safety Act arising from a stage collapse at a Radiohead concert in Toronto was appointed to the Superior Court of Justice mid-trial.

The Crown argued the judge retained jurisdiction to complete the trial under the Provincial Offences Act, while the defence argued the appointment resulted in loss of jurisdiction.

The court found that the judge had lost jurisdiction to continue the trial, as the Provincial Offences Act lacks a provision comparable to section 669.3 of the Criminal Code permitting continuing jurisdiction upon appointment to another court.

A new trial was ordered.

Defendants charged with offences under the Occupational Health and Safety Act brought applications alleging violations of their Charter right to trial within a reasonable time under section 11(b).

The court applied the new framework established in R. v. Jordan, determining that while the net delay of approximately 44 months exceeded the 18-month presumptive ceiling for Ontario Court of Justice trials, the Crown established exceptional circumstances justifying the delay.

The court found the case was particularly complex due to the nature of the evidence and issues involved, and that the transitional exceptional circumstance applied to cases in the system when Jordan was released.

The applications were dismissed.

This is a trial decision on a voir dire regarding the admissibility of expert evidence in a prosecution under the Occupational Health and Safety Act arising from a stage collapse at a concert venue that resulted in a fatality.

The defendant Live Nation Canada Inc. challenged the qualification of two Ministry of Labour engineers to provide expert opinion evidence on the cause of the stage collapse.

The court found that both experts met the threshold requirement to testify, applying the test established in White Burgess v. Abbott and Haliburton Co. The court rejected arguments that the experts' involvement in the investigation, their employment relationship with the Ministry of Labour, and their participation in interviews with defendants undermined their independence and impartiality.