Andrew Donald Ferguson

The plaintiffs moved for a status hearing to extend the deadline to set their complex construction action down for trial.

The defendant DeMarco Construction opposed, arguing the delay was inexcusable and caused prejudice due to the death of its primary witness.

The court found the plaintiffs provided an acceptable explanation for the delay, citing health issues and difficulties scheduling mediation.

The court also held that the prejudice from the witness's death was not attributable to the plaintiffs' delay and was attenuated by the availability of discovery transcripts and documentary evidence.

The motion to extend the deadline was granted.

A shareholder sought audited financial statements from a corporation spanning multiple years, arguing the corporation had failed to comply with its statutory obligations under the Business Corporations Act.

The respondents contended that the shareholder's demand was barred by the two-year limitation period under the Limitations Act, 2002.

The Court of Appeal affirmed the Divisional Court's decision that the limitation period applies to compliance orders seeking enforcement of statutory obligations that correspond to shareholder rights.

The court rejected the argument that compliance orders are merely enforcement mechanisms without corresponding legal rights, holding instead that statutory obligations to provide audited financial statements create three-term legal relations where shareholders hold enforceable rights against the corporation.

The applicants sought the court's intervention under s. 128(5) of the Insurance Act to appoint an umpire for a property damage appraisal after a collision involving a lawnmower and their home, as their appointed appraisers could not agree on a suitable umpire.

The court considered the proposed candidates from both sides, assessing their expertise and impartiality.

While finding no disqualifying bias in any candidate, the court chose an alternative from the respondents' list, Thomas Hanrahan, to ensure fairness given the applicants' objections to the respondents' first choice.

The court declined to award costs, noting that the dispute was made larger than necessary.

The landlords of a bankrupt individual sought a declaration that the stay of proceedings under the Bankruptcy and Insolvency Act did not apply to an eviction order obtained from the Landlord and Tenant Board, or, alternatively, an order to lift the stay.

The court found that the eviction order was not a 'debt or liability' and therefore not subject to the stay.

In the alternative, the court would have exercised its discretion to lift the stay, finding it just and equitable given the material prejudice to the landlords.

The bankrupt's request for a sealing order was denied, and costs were awarded to the landlords.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action for breach of contract, breach of trust, unjust enrichment, and breach of the Canada Business Corporations Act on the basis that the claims were statute-barred.

The plaintiff argued that an agreement reached in 2016 extended the limitation period and that a trial was necessary to resolve factual disputes.

The court found that there was no genuine issue requiring a trial, as the material facts regarding discoverability were not in dispute.

The court held that the plaintiff failed to act with reasonable diligence to discover its claims and that the action, commenced nearly four years after the work was completed, was barred by the two-year limitation period under the Limitations Act, 2002.

The motion was granted and the plaintiff's claims were dismissed.

The plaintiff Trustee brought a motion for summary judgment to set aside a conveyance of property from the bankrupt defendant to a close family friend for $1.

The transfer occurred less than three months before the defendant filed for bankruptcy and shortly after she was ordered to pay costs in estate litigation.

The court found the transfer was made at undervalue to a non-arm's length party with the intent to defeat or delay creditors.

The motion was granted, and the conveyance was declared void under section 96(1) of the Bankruptcy and Insolvency Act.

The appellant, a professional accountant and second-time bankrupt, appealed a conditional discharge order requiring him to pay $325,000 to the Trustee.

The application judge found the appellant untruthful, evasive, and in breach of disclosure obligations under the Bankruptcy and Insolvency Act, including failing to disclose businesses, records, property, vehicle sales, and loans/inheritance from his mother.

The Court of Appeal dismissed the appeal, affirming the conditional discharge was based on the appellant's conduct and disclosure breaches, not surplus income under s. 68.

The court also addressed improper ex parte communications by the Trustee, finding no miscarriage of justice.

The applicants sought an interlocutory injunction to prevent their neighbours from removing an existing fence and constructing a new one on a municipal laneway.

The court applied the three-part test for interlocutory injunctions (serious issue to be tried, irreparable harm, balance of convenience).

The court found no serious issue to be tried as the respondents had no current intention to interfere with the fence, especially after the City clarified its policy against new encroachments.

The court also found no irreparable harm and that the balance of convenience did not favour granting the injunction.

The motion for an interlocutory injunction was dismissed, though leave to amend the Statement of Claim was granted.

This addendum to a January 2022 judgment corrects calculation errors in the original judgment regarding a construction lien claim.

Specifically, the contract price for Boston Pizza was corrected, and two agreed-upon chargebacks were included, changing the judgment amount for Green View Heating & Cooling Inc. to $57,771.41 for that portion of the claim.

The addendum also addresses the matter of costs, awarding the plaintiff $57,000.00 on a partial indemnity basis, apportioned between the Homewood and Boston Pizza claims.

The defendants brought a motion for leave to amend their statement of defence and counterclaim in an action by the plaintiff bank to enforce loan agreements.

The proposed amendments sought to plead that all defendants suffered damages, add a claim for the tort of deceit, and expand pleadings regarding breach of honesty and good faith.

The plaintiff opposed, arguing the amendments were statute-barred, an abuse of process, and untenable at law.

The court granted leave for all amendments, finding they either particularized existing claims or were based on newly discovered facts with a reasonable explanation for the delay.

The defendants were ordered to pay $1,050 plus HST for the costs of the plaintiff preparing an amended reply.

This is a costs endorsement following an appeal and cross-appeal.

The Court of Appeal for Ontario determined that success on both the appeal and cross-appeal was divided, and therefore ordered that each party bear their own costs.

The plaintiff brought a motion to lift a stay of execution on a prior summary judgment order, which had been imposed to allow cross-claims between the defendants.

The stay was lifted because one defendant, Andrew Maracle, entered bankruptcy proceedings, making a cross-claim by the other defendant, Andrew Clifford Miracle, impossible.

The court awarded prejudgment interest at 28.82% on the principal amount of $69,417.37, totaling $31,625.37.

Post-judgment interest was also ordered.

Costs were awarded to the plaintiff on a partial indemnity basis for $8,669.93, considering the defendants' failure to accept settlement offers and lack of their own offers.

The court clarified that Andrew Clifford Miracle remained liable as a partner despite Andrew Maracle's bankruptcy.

The defendants brought a motion to stay a construction lien action, arguing it was commenced without proper corporate authority.

The plaintiff corporation's Unanimous Shareholders Agreement required a three-director board, but the action was authorized by a single director.

The court found that the indoor management rule did not apply because the dispute involved internal corporate governance issues rather than a simple collection matter.

The court granted the motion and stayed the action until a valid resolution is passed by a properly appointed board of directors.

The appellant, a manufacturer and supplier of touchscreens, appealed a trial judgment finding it liable for breach of implied conditions under the Sale of Goods Act.

The trial judge found that touchscreens supplied to the respondent, a manufacturer of mobile display terminals, were defective due to poor lamination caused by the appellant's subcontractor.

The trial judge awarded damages of $355,193.49 to the respondent for replacement costs, labour, and shipping, offset against outstanding invoices.

The appeal court upheld the trial judgment on both liability and damages, finding no palpable and overriding error and rejecting all four grounds of appeal.

The Toronto-Dominion Bank and the defendants brought cross-motions for summary judgment.

The Bank sought judgment on outstanding loans and dismissal of a counterclaim.

The defendants counterclaimed for negligence, negligent misrepresentation, and breach of contract related to a Canada Small Business Financing Loan (CSBFL) and a Home Equity Line of Credit (HELOC).

The court found the Bank liable for breach of contract and negligence regarding the CSBFL for failing to fully fund the promised amount.

However, the defendants' claim concerning the HELOC's inflated appraisal was dismissed due to accord and satisfaction, as a new agreement was reached and the credit facility was continuously used.

Liability was determined, with damages to be assessed at a separate trial.

This motion involved multiple parties in consolidated construction lien actions concerning two large-scale solar projects.

The plaintiff, Lennox Snow Fence Co. (1982) Ltd., acting as carriage counsel for several lien claimants, sought to approve Vetting Committee recommendations regarding lien quantum and timeliness, and for payment.

ABB Inc., the general contractor, brought a cross-motion to reduce the security it posted for Simpson's Fence (Chatham) Inc.'s liens and to transfer a related breach of trust action.

The court dismissed the motion to approve the Vetting Committee recommendations due to Simpson's Fence's objections and lack of consensus, and denied immediate payment to lien claimants.

However, it ordered the discharge of liens for Clarida, Mod Space, and SMS Rents, and the return of associated security.

The court also denied ABB's request to reduce security for Simpson's Fence's liens, finding genuine issues of fact requiring trial.

Common discoveries and production were ordered for all lien claimants.

The breach of trust action was transferred to Napanee to be heard after the lien claims.

Following a trial that confirmed the parties as equal tenants in common of a property, the court ordered a reference to account for rental revenues collected by the plaintiff.

The plaintiff provided evidence of revenues and expenses, though funds had been co-mingled with their late father's accounts.

The referee found the plaintiff successfully accounted for the majority of the funds, but ordered an adjustment of $5,541.08 in favour of the defendant for unaccounted revenue and expenses.

DCM Erectors Inc. brought a motion to stay enforcement of an unopposed judgment, remove opposing counsel for conflict of interest, and set aside the judgment in a complex construction lien dispute.

The Master dismissed the requests to remove counsel and set aside the judgment, finding no impropriety in the joint representation of sub-trades and the surety.

However, the Master granted a stay of enforcement of the personal judgment against DCM, finding it would be unjust to allow the surety to enforce assigned sub-trade debts against DCM while simultaneously resisting payment to DCM on its own lien claim.

The plaintiffs brought a motion seeking leave to examine two non-party witnesses and to amend the claim to remove one of the plaintiffs in his personal capacity.

The court dismissed the request to examine the non-parties, finding it premature as the plaintiffs had not yet exhausted the discovery process through a refusals motion.

The court granted the request to remove the individual plaintiff on terms, including that he pay $2,000 in costs to one of the defendants and remain liable for costs awarded against the unincorporated plaintiffs.

Multiple motions arose in more than 45 construction lien actions concerning five related solar farm projects across Eastern Ontario.

The plaintiff sought transfer and consolidation of numerous lien actions, while the general contractor sought reduction of security posted to vacate liens under the Construction Lien Act.

The court declined full consolidation, instead designating “main actions” for each project and implementing procedural directions to coordinate litigation efficiently while avoiding administrative burdens associated with transferring and merging dozens of proceedings.

The court partially granted the motion to reduce security where duplicate or inflated lien claims were conceded, while adjourning the balance pending further negotiations and analysis of holdback exposure and overlapping claims.