Andrea Gorys

The defendants brought motions under section 86(1)(b)(i) of the old Construction Act seeking costs against the plaintiff's former law firm, arguing the firm participated in preserving and perfecting a baseless construction lien.

The court held that liability under this section requires subjective actual knowledge, recklessness, or willful blindness regarding the baselessness of the lien, rather than mere negligence.

Finding no evidence that the law firm possessed such knowledge or acted with willful blindness at the time of preservation and perfection, the court dismissed the motions.

This decision concerns the quantum and standard of costs awarded following successful motions by CB Bridle Path Inc. and Jia Development Inc. against 2708320 Ontario Ltd. cob Viceroy Homes.

The motions sought to discharge Viceroy's frivolous and vexatious construction lien and dismiss its action for non-compliance with a prior order.

The court awarded full indemnity costs of $85,000 to Bridle Path and substantial indemnity costs of $45,000 to Jia, finding Viceroy's conduct, including fabricating a lien for extortionary purposes, to be egregious.

The court also pierced the corporate veil to hold Viceroy's principal, Andrew Sun, jointly and severally liable for Jia's costs.

The defendants, Jia Development Inc. and CB Bridle Path Inc., brought a motion under section 47 of the Construction Act to discharge a construction lien filed by the plaintiff, 2708320 Ontario Ltd. cob Viceroy Homes, and vacate the related certificate of action.

They also sought to dismiss the plaintiff's action due to its failure to appoint new counsel after its previous lawyers withdrew.

The court found the lien claim to be frivolous, vexatious, and an an abuse of process, citing lack of evidence for the claimed work and improper purpose.

Additionally, the plaintiff corporation failed to comply with the order to retain new counsel or obtain leave for non-lawyer representation.

The court granted the defendants' motions, discharging the lien, vacating the certificate of action, and dismissing the plaintiff's action.

This case conference addressed the scheduling of Carillion Construction Inc.'s motion for further productions against the City of Toronto and NORR Limited in a complex multi-party construction litigation concerning Toronto's Union Station project.

Carillion sought various production orders and a discovery completion deadline prior to a scheduled mediation.

The City and NORR argued for delaying the motion until after mediation, citing the volume of existing documents and the laborious process of retrieving new ones.

The court determined that Carillion's motion should proceed prior to mediation, finding no cogent reason to delay the argument, but indicated that the actual production of documents, if ordered, could potentially be deferred until after the mediation.

The court urged counsel to schedule the motion.

This case conference endorsement outlines procedural progress in a complex, multi-party construction litigation involving Carillion Construction Inc., the City of Toronto, and NORR Limited, among others.

The court addressed the schedule for executive discoveries, ruling that they must proceed as planned, contrary to the City's submission.

It also confirmed the mediation schedule for March-April 2019, involving various claimants and insurers.

Further directions were given regarding documentary production by subcontractors and the City's amended third-party claim against Metrolinx, setting deadlines for Metrolinx's response or motion.

Following a successful summary judgment motion dismissing the action against a hospital in a medical malpractice proceeding, the court addressed costs.

The hospital sought recovery of its costs for both the summary judgment motion and the broader action.

The court considered whether a Bullock or Sanderson order was appropriate and the impact of a co-defendant physician’s refusal to admit a key factual issue relating to nursing care.

Exercising discretion under Rule 57.01(1)(g) of the Rules of Civil Procedure and s.131 of the Courts of Justice Act, the court held that the physician’s refusal to admit the fact necessitated the motion and justified shifting the hospital’s costs to him.

The hospital’s costs were fixed for the motion, the action, and the costs hearing.

The moving party hospital sought summary judgment dismissing a medical negligence action arising from a post-surgical brain infection allegedly caused by a nurse’s failure to report purulent drainage from a patient’s incision prior to discharge.

The plaintiffs alleged the nurse negligently allowed discharge without informing the treating physician or properly documenting the observation.

The court held that the motion record permitted a full appreciation of the issues and that the circumstantial and usual-practice evidence supported the inference that the nurse had reported the drainage to the physician and complied with the applicable standard of care.

The plaintiffs failed to produce evidence contradicting the nurse’s usual practice or establishing causation between any alleged failure and the injury.

Summary judgment was therefore granted dismissing the claims and cross‑claims against the hospital.

Following a successful motion to amend a statement of claim to add new parties under Rule 5.04 of the Rules of Civil Procedure, the plaintiffs sought costs against the proposed defendants who opposed the amendment.

The plaintiffs requested partial indemnity costs with a portion on a substantial indemnity basis relying on a prior offer to settle.

The court held that the offer to settle contained no element of compromise because it was served before the responding parties filed materials and before the plaintiffs were entitled to costs.

Applying the principles under the Courts of Justice Act and Rule 57.01, the court fixed costs on a partial indemnity basis and declined to consider the offer to settle.

The plaintiffs brought a motion to amend their statement of claim to add several new defendants, including an introducing broker, after discovering their involvement in the loss of the plaintiffs' investments.

The proposed broker defendants opposed the motion, arguing the claims against them were not tenable at law.

The Master granted the motion, finding that the proposed negligence claims were not clearly impossible of success and that the duty of care analysis should be left for a full evidentiary record.