8 total
The court cured a wrong file number on a trial record, saving a construction lien.
The court considered whether a construction lien action was properly set down for trial within the two-year period required by section 37(1) of the Construction Act, despite the use of the wrong court file number and style of cause in the trial record.
The defendant, MP Lundy Construction Inc., sought a declaration that the lien had expired and the return of security.
The plaintiff, KE Electrical Ltd., cross-moved to amend the court file number nunc pro tunc.
The court found the error to be an irregularity curable under Rule 2.01 of the Rules of Civil Procedure, relying on the Court of Appeal’s reasoning in Foran.
The defendant’s motion was dismissed and the plaintiff’s cross-motion was granted.
The court awarded the successful plaintiffs $12,000 in partial indemnity costs, significantly reducing the claimed amount for proportionality.
This costs endorsement addresses the appropriate scale and quantum of costs following the plaintiffs’ successful resistance to the Gamma defendants’ motion to quash a summons to witness.
The court declines to award substantial indemnity costs, finding no litigation conduct warranting sanction, and instead fixes partial indemnity costs at $12,000, inclusive of disbursements and HST, to be paid by the Gamma defendants to the plaintiffs within 30 days.
The court dismissed a motion to quash a summons to witness, finding the proposed examination relevant to a pending jurisdiction motion.
The Gamma defendants sought to quash a summons to witness served on Harry Wang in relation to a pending jurisdiction motion.
The court found that the plaintiffs were entitled to examine Mr. Wang under Rule 39.03 of the Rules of Civil Procedure, as he was in a position to provide relevant evidence regarding whether the Gamma foreign defendants do business in Ontario.
The court dismissed the motion to quash, finding that the plaintiffs had satisfied the relevancy and evidentiary screening and that the proposed examination was not an abuse of process.
The court dismissed an application for leave to appeal an arbitration award, finding the arbitration agreement precluded appeals.
The applicant, Johnson Bros.
Corporation, sought leave to appeal from a partial arbitration award and a final arbitration award concerning costs and interest.
The respondent, Soletanche Bachy Canada Inc., opposed the application.
The court dismissed the application, finding that the arbitration agreement, which incorporated CCDC 40 rules and stipulated that disputes would be "finally resolved" and awards "final and binding" precluded any right to appeal.
The court further held that even if a right to appeal existed, the proposed questions of law regarding the reversal of onus, weather-related damages, and COVID-19 impacts were either not pure questions of law or lacked sufficient evidentiary basis for appellate review.
Appeal dismissed; court cannot grant leave nunc pro tunc to convert a Construction Act third party claim after limitation period expires.
The appellant appealed an order setting aside the noting in default of the respondent and permanently staying a third party claim brought under the Construction Act.
The appellant had commenced the third party claim without seeking the required leave and sought to convert it to an ordinary civil proceeding more than five years after the limitation period expired.
The Divisional Court dismissed the appeal, holding that a motion for leave to convert a construction lien third party claim must be brought before the expiry of the limitation period, and the motion judge made no error in refusing to grant leave nunc pro tunc.
Costs awarded to defendants after plaintiff unreasonably refused to consent to late response to Request to Admit.
The parties resolved a motion regarding a late response to a Request to Admit on consent, leaving only the issue of costs to be decided.
The plaintiff had refused to consent to a short extension of time after the defendants' counsel inadvertently missed the deadline.
The court found that the plaintiff's refusal to consent to a reasonable extension request unnecessarily lengthened the proceedings, especially since the plaintiff had failed to obtain the required leave under the Construction Lien Act before serving the Request to Admit.
Costs were awarded to the defendants on a partial indemnity basis.
Time for service of Statement of Claim extended nunc pro tunc; costs awarded to defendants.
The plaintiff brought a motion to extend the time for service of its Statement of Claim under the Construction Lien Act.
The court granted the extension nunc pro tunc, finding that the default was not intentional, there was no inordinate delay, and the delay would not prejudice a fair trial.
However, because the motion was necessitated by the plaintiff's inadvertence, costs were awarded to the defendants.
Tax Motion granted
The plaintiff brought a motion to extend the time for service of its Statement of Claim, which was granted *nunc pro tunc* to comply with s. 53(2) of the Construction Lien Act.
The court found the default was not intentional, there was no inordinate delay, and the delay would not affect a fair trial.
Despite the plaintiff's success in obtaining the extension, the defendants were awarded costs due to the plaintiff's inadvertence in necessitating the motion.
