Andrew J. Heal

The applicant First Nation sought an interpleader order to pay a construction holdback fund into court due to multiple adverse claims from subcontractors, a garnishee, and the Canada Revenue Agency (CRA).

The court granted the interpleader, finding that the fund was neither the property of the general contractor (Razar) nor a debt payable to Razar, based on the contract terms and the Construction Act's trust provisions.

Consequently, the priority claims of the garnishee and CRA were dismissed as premature, as their claims depended on the fund being the general contractor's property.

The moving party sought leave to bring a motion to discharge a construction lien and dismiss or stay the action based on the plaintiff's delayed disclosure of an assignment agreement, arguing it constituted an abuse of process.

The court held that leave is not required to bring a motion under s. 47 of the Construction Lien Act, as the merits of whether the ground is 'proper' should be determined on the motion itself.

However, the court found that seeking relief under Rule 21.01(3)(d) of the Rules of Civil Procedure and s. 106 of the Courts of Justice Act constitutes an 'interlocutory step' requiring leave under s. 67(2) of the CLA, even if the relief sought is final.

The court granted leave, concluding that the proposed motion would expedite the resolution of the issues in dispute in the lien action.

The plaintiff brought an action in negligence, nuisance, and trespass against her neighbours and the City of Vaughan, alleging that construction activities on the neighbours' property altered the grading and caused water to flow onto her property, resulting in damages.

The claims against the municipal defendants were settled during trial.

The court dismissed the remaining claims against the neighbour, finding that the plaintiff failed to prove causation.

Expert evidence established that the water problems were actually caused by the plaintiff's own landscapers, who had flattened the common swale and altered the grading on her property, preventing proper drainage.

The court found no negligence or unreasonable interference by the neighbour.

The plaintiffs and defendants entered into Minutes of Settlement to resolve a dispute over the construction of a residence.

The plaintiffs subsequently brought a motion for summary judgment, alleging the defendants breached the settlement terms regarding electrical, plumbing, HVAC, and roofing work, and sought damages.

The defendants brought a cross-motion to enforce the settlement, arguing they had fully complied.

The court reviewed the evidence and found that the defendants had completed all required work to the plaintiffs' satisfaction and that the settlement funds had been properly released.

The court dismissed the plaintiffs' motion, granted the defendants' motion to enforce the settlement, and dismissed the underlying action and counterclaim.

The plaintiffs' home was flooded twice due to a cast iron water main breaking in front of their driveway.

They sued the City of Vaughan for negligence and nuisance.

The City argued its failure to replace the water main was a policy decision exempt from liability under the Municipal Act.

The court found the City's inaction was an operational decision, as it failed to follow its own internal barometer for replacing water mains with a history of breaks.

The City was found liable for negligence, and the plaintiffs were awarded agreed-upon damages of $480,000.

Following a settlement of the principal amount in a long-standing construction contract dispute, the court conducted a "mini-trial" to determine the applicable pre-judgment interest rates on the settled funds and the award of costs.

The court found that $116,000 of the settlement, attributable to architect fees, was payable under the Construction Contract, thus attracting the contractually stipulated interest rate of prime plus 2%.

The remaining $30,300 for miscellaneous expenses was subject to the standard Courts of Justice Act interest rate due to insufficient evidence linking it to the contract.

The court awarded the plaintiff substantial costs, noting that while both parties contributed to the litigation's longevity, the plaintiff was entirely successful on the issues before the court and the defendant's evidentiary case was weak.

Following reasons on several construction lien motions relating to a subway station project, the successful lien claimant sought partial indemnity costs exceeding $82,000.

The responding parties challenged the amount as excessive and attempted to dissect the bill of costs without producing their own costs outlines as required under Rule 57.01(6) of the Rules of Civil Procedure.

The court emphasized that costs fixing is not an item-by-item assessment and that reasonable expectation and indemnity principles govern the exercise.

The absence of a costs outline from the objecting party undermined its argument for reductions.

The court fixed costs largely as claimed, awarding partial indemnity costs plus additional costs for preparing submissions.

The defendant municipality appealed a master's order granting leave to amend a statement of claim to add additional plaintiffs and new causes of action relating to a municipal waste services tender process.

The municipality argued the proposed claims were statute-barred under the Limitations Act, 2002 because the discoverability date arose when the first tender was cancelled.

The court held that it was arguable the first and second tenders formed a single continuous procurement process, meaning the claim might not have been discoverable until the cancellation of the second tender.

Because the proposed amendments were not clearly statute-barred and therefore not plainly impossible of success, the master's decision permitting the amendments was upheld.

A subcontractor filed a construction lien arising from specialized grouting and monitoring work performed in connection with the Toronto-York subway extension beneath a university building.

The general contractor moved to discharge the lien, arguing the work occurred on a railway right-of-way and that the university was not an “owner” under the Construction Lien Act.

The court rejected these arguments, holding the university qualified as an owner because the work was requested, controlled, and directly benefitted its property.

The lien was therefore validly preserved by registration on title.

The court also held that the subcontract’s broad arbitration clause required the underlying payment dispute to proceed to arbitration and stayed the lien action while refusing to add the transit authority as a third party.

The moving parties sought leave to amend a statement of claim to add affiliated corporations as plaintiffs and to plead additional causes of action including negligent misrepresentation, breach of by-laws and guidelines, and misfeasance in public office arising from a municipal waste management tender process.

The defendant opposed the amendments on the basis that the proposed claims were statute barred under the Limitations Act, 2002.

The court held that amendments should be granted unless clearly impossible of success or causing non-compensable prejudice.

The proposed amendments arose from the same factual matrix as the existing claim and could reasonably succeed.

Issues concerning the limitation period and discoverability were triable matters better left for determination at trial.

Following dismissal of the defendants’ Rule 21 motion to strike the claim, the court addressed the issue of costs.

The plaintiffs sought costs, arguing the motion was unreasonable and unsupported by authority, while the defendants contended the motion raised a novel legal issue and that no costs should be ordered.

Applying s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered proportionality, complexity, and the results achieved.

The court rejected the argument that the motion was patently unreasonable but held that the successful parties were entitled to costs.

Partial indemnity costs of $16,500 were awarded to the plaintiffs.

The defendants brought a Rule 21 motion seeking a determination before trial that the plaintiffs’ claim against a surety under a performance bond could not exceed the bond amount and requesting that the action be stayed or limited accordingly.

The dispute arose from a subcontract for compensation grouting work on the Toronto‑York Spadina Subway Extension project.

The plaintiffs alleged that the subcontractor’s breaches caused extensive delay damages and that the surety’s conduct, including alleged inaction and misrepresentation following default, exposed it to liability beyond the bond amount.

The court held that it was not plain and obvious that the plaintiffs’ claim had no reasonable prospect of success, particularly where the pleadings alleged conduct by the surety potentially giving rise to liability beyond the bond cap.

As the legal question was unsettled in Canadian jurisprudence and factual issues remained disputed, the motion was dismissed.

The appellants appealed a decision setting aside a stay of proceedings granted by a Justice of the Peace.

The Court of Appeal dismissed the appeal, finding that while the officer's conduct might have justified a finding of abuse of process, a stay of proceedings was not the only remedy available.

The court emphasized that a stay is a prospective remedy of last resort, and lesser remedies, such as disregarding the officer's testimony or addressing disclosure issues, were sufficient to remove any prejudice.

The applicants sought leave to appeal a decision reversing a stay of proceedings.

The trial judge had stayed the proceedings for operating a public garage contrary to a municipal by-law, finding the prosecution was an abuse of process based on the by-law officer's evidence.

The appeal judge reversed the stay and ordered a new trial.

The Court of Appeal granted leave to appeal under s. 131 of the Provincial Offences Act, finding the case raised significant questions of law regarding the laying of charges by enforcement officers that met the public interest requirement.

The appellants appealed a motion judge's decision denying their request to amend their pleadings to add a new cause of action against the respondent town regarding building permit inspections and foundation suitability.

The Court of Appeal dismissed the appeal, finding ample evidence supported the motion judge's conclusion that the appellants discovered the new claim years earlier.

The Court also agreed that the town suffered actual prejudice due to the demolition of the premises and that the proposed amendment constituted a fundamentally different claim.

The City of Vaughan appealed a decision dismissing its motion for summary judgment, arguing that s. 20(1)(a) of the Oak Ridges Moraine Conservation Act provided complete immunity against the plaintiffs' $151 million claim for malfeasance and negligence.

The plaintiffs alleged the City deliberately delayed their zoning applications, causing them to lose the opportunity to develop their land before retroactive legislative amendments made the development impossible.

The Divisional Court dismissed the appeal, finding that the plaintiffs' cause of action and some damages accrued prior to the legislative amendments, meaning statutory immunity did not completely bar the claim.

The court also reduced the motion judge's substantial indemnity costs award from $169,156.30 to $119,156.30.

The moving party municipality sought leave to appeal a motion judge's dismissal of its motions for summary judgment and determination of a question of law.

The underlying action involved claims of misfeasance and negligence related to the closing of zoning applications.

The Divisional Court granted leave to appeal on the issue of whether the municipality was immune from suit under s. 20(1)(a) of the Oak Ridges Moraine Conservation Act, finding there was good reason to doubt the correctness of the motion judge's decision and that the issue was of general importance.

Leave to appeal on the limitation period issue was denied.

The appellants appealed an order dismissing their claim for delay.

The Court of Appeal found no error in the motion judge's decision, noting that the appellant did nothing to pursue his claim for 10 years and offered no explanation or excuse.

The court also noted there was no evidence of steps taken to gain entry into Canada to comply with a previous order, and the appellant did not have a strong prima facie case.

The appeal was dismissed with costs.

Sure Fresh Foods Inc. appealed a decision of the Chicken Farmers of Ontario (CFO) refusing to review and adjust a levy imposed by the Chicken Farmers of Canada (CFC) for failing to meet market development commitments.

The CFO raised preliminary objections regarding timeliness, jurisdiction, and collateral attack.

The Tribunal found the appeal was timely and that it had jurisdiction to review CFO decisions, but concluded the appeal was an impermissible collateral attack on the CFC's levy decision, which had already been unsuccessfully appealed to the National Farm Products Council.

The appeal was dismissed.

A police officer appealed a decision of the Ontario Civilian Commission on Police Services (OCCPS) that dismissed his appeal from a Hearing Officer's finding of misconduct.

The officer argued the Hearing Officer lacked jurisdiction because the Notice of Hearing was served outside the six-month limitation period under s. 69(18) of the Police Services Act.

The Divisional Court allowed the appeal, finding that OCCPS applied an incorrect legal test to determine when sufficient facts came to the Chief's attention, rendering its decision unreasonable.

The Court further held that the officer's guilty plea did not waive his right to appeal the jurisdictional defect, as consent cannot confer jurisdiction on a statutory tribunal.