Andrew Punzo

The applicants, QM GP Inc. and Highpoint Environmental Services Inc., sought an initial order under the Companies' Creditors Arrangement Act and a lien regularization order.

The applicants sought protection to address acute liquidity crisis, interim financing, and relief to stabilize operations.

The court granted the initial order with certain modifications, approving interim debtor-in-possession financing, appointment of a monitor, administration and directors' charges, and a lien regularization order.

The court also granted a temporary stay on performance bond calls and certain indemnity obligations, with the Kingsdale Letter of Credit issue deferred to the comeback hearing.

The court granted partial summary judgment in favour of Western Surety Company on its claim for exoneration against the defendants.

The decision reviews the legal principles underpinning exoneration clauses in surety indemnity agreements, the appropriateness of partial summary judgment, and the application of these principles to the facts.

The court found that the exoneration claim was discrete and severable from indemnification claims, that there was no genuine issue requiring a trial, and that the defendants were jointly and severally liable to exonerate Western in the amount of $3,990,000.

The plaintiff, Northbridge General Insurance Company, a surety, brought a motion for default judgment against the defendants, PSA Construction Inc., PSA Holdings Inc., Paul Andrews, and Kimberly Andrews, who were indemnitors under indemnity agreements.

Northbridge had issued performance and labour and material bonds with PSA Construction as principal and made payments due to PSA's default on construction contracts.

The defendants failed to defend the proceeding and were noted in default.

The court granted judgment in favour of Northbridge, finding liability based on the deemed admissions in the Statement of Claim and awarding damages for past claims paid and for current and estimated future claims, including legal expenses, as per the indemnity agreements.

The Armor defendants brought a motion to consolidate a construction lien action (Pentad v. Armor defendants) with a related bond action (Armor v. Echelon Insurance), and to transfer the bond action from Toronto to Newmarket.

The court found that while the actions shared common questions of law and fact, consolidation was not appropriate due to limitations under the Construction Lien Act, which applied to the lien action and restricted the consolidation of lien and non-lien actions and the addition of third-party defendants by counterclaim.

Instead, the court ordered the bond action to be transferred to Newmarket and both actions to be heard at the same time or one immediately after the other, with common discoveries, to avoid inconsistent findings.

The plaintiff surety brought a motion for summary judgment against the defendant indemnitors for payments made under performance and labour and materials bonds.

The defendants opposed the motion, arguing the plaintiff failed to produce relevant documents requested during cross-examination that were necessary to assess the reasonableness of the payments.

The court found that the plaintiff's blanket refusals to produce the requested documents resulted in an incomplete evidentiary record.

Consequently, the plaintiff failed to discharge its onus of showing there was no genuine issue requiring a trial, and the motion was dismissed.

The defendants brought a motion to compel the plaintiff to deliver a further and better affidavit of documents, arguing that the plaintiff's initial affidavit was incomplete and missing key documents related to pre-contractual agreements, contract terms, and the quality and functionality of materials supplied.

The plaintiff contended that the documents were irrelevant or already in the defendants' possession.

The court partially granted the motion, ordering the plaintiff to produce specific communications and documents related to the materials' condition, particularly those already exchanged between the parties.

However, the court dismissed requests deemed overly broad, irrelevant to the pleadings, or more appropriate for exploration during examinations for discovery, such as documents concerning the plaintiff's general manufacturing processes or experience.

The defendant brought a motion to compel answers to undertakings and questions refused on discovery in an action involving a claim on a surety bond.

The court applied the tests for relevance and proportionality under the Rules of Civil Procedure.

The court ordered the plaintiff to answer questions relating to time and material costs, documents reviewed for an expert report, and the provision of false statutory declarations.

The court dismissed the motion regarding questions about the plaintiff's calculation of overhead and profits and its payment of trades and suppliers, finding them irrelevant to the lump sum contract claim.

This motion concerned undertakings and refusals in cross-examinations related to a charging order sought by BPR Litigation Lawyers against bond funds held for Unimac Group Ltd. Trisura Guarantee Insurance Company, an interested third party, challenged the quantum of the charging order and the extent of solicitor-client privilege claimed by Unimac/BPR.

The court determined that Trisura was entitled to question the quantum of the charging order and that privilege did not extend to descriptions of work performed in work-in-progress reports, but did protect confidential solicitor-client communications and business judgment decisions.

The plaintiff moved for summary judgment after the insurer declared her automobile insurance policy void ab initio based on an alleged misrepresentation that no other licensed drivers lived in her household.

The insurer relied on s. 233 of the Insurance Act and asserted that the plaintiff’s former partner was living with her when the application was made.

The court found the insurer failed to meet its evidentiary burden to establish a knowing misrepresentation and had not put its best foot forward on the motion.

The defendant’s evidence was largely indirect, hearsay, or overstated, while the plaintiff’s evidence was unchallenged.

Summary judgment was granted declaring the policy valid and requiring the insurer to honour its obligations.