Andrew W. McKenna

The appellant condominium corporation appealed a decision by Tarion Warranty Corporation denying warranty coverage for several common element defects in a 14-storey building constructed by Claridge Homes.

The Tribunal found that the claims regarding cold walls, lack of window drawing details, and air leakage were not warranted.

However, the Tribunal found that excess condensation on windows and patio doors caused by substandard insulation, and deficient insulation of the dual-temperature pipe system, were breaches of the statutory warranty.

The Tribunal awarded $166,000 plus HST for the window insulation repairs and $906,285 plus HST for the pipe insulation repairs, to be paid from the guarantee fund.

The Tribunal also held that the appellant's delay in bringing the claim did not bar recovery.

The member faced allegations of professional misconduct for failing to adequately supervise an unregistered psychotherapist and failing to maintain proper clinical and billing records.

The member admitted to the allegations via an Agreed Statement of Facts.

The Discipline Committee found the member guilty of professional misconduct and accepted a joint submission on penalty, ordering a reprimand and a 12-month individualized coaching program at the member's expense.

The moving parties sought to review an order of a single judge dismissing their motion to expedite the hearing of two leave to appeal motions.

The underlying matters related to a Crown wardship order and a Habeas Corpus application.

The moving parties argued that as Aboriginal people, they had a right to have matters heard in a court of equity applying Aboriginal law, and that the children's aid society had no authority to apprehend their children.

The Court of Appeal dismissed the motion, finding no basis to interfere with the single judge's procedural ruling that the matters were not properly before the court.

The plaintiff brought a motion to adjourn a scheduled jury trial in a medical malpractice action after learning that a key expert witness would be unavailable on the trial date.

The defendants opposed the adjournment, arguing the unavailability resulted from the plaintiff’s counsel failing to notify the expert of the agreed trial date in a timely manner.

The court considered the discretionary test for adjournments and the need to balance the interests of the parties and the administration of justice.

Although the court criticized the plaintiff’s counsel’s conduct as inexcusable, it concluded the plaintiff would suffer prejudice if forced to proceed without the expert’s live testimony and there was no evidence of non‑compensable prejudice to the defendants.

The trial was adjourned and directed to be rescheduled peremptory on the plaintiff.

The applicant homeowner brought an omnibus pre-hearing motion seeking summary judgment, an order extending warranties, oral discovery, and further disclosure regarding a claim for water penetration in their new home's basement.

The Licence Appeal Tribunal dismissed the motion, finding it lacked jurisdiction under the Ontario New Home Warranties Plan Act to grant the substantive relief sought on a pre-hearing motion.

The Tribunal also declined to exercise its procedural discretion to order further particulars or oral discovery, noting the respondent had already made fulsome disclosure and oral discovery is not provided for in the Tribunal's Rules.

The plaintiff lien claimants brought a motion for judgment following the defendants' default on a settlement agreement in a construction lien reference.

The first mortgagee, Pillar, sought the return of funds it had advanced that were held in trust by plaintiff's counsel.

The Master granted judgment to the lien claimants, finding they were entitled to enforce the settlement agreement upon default.

The Master dismissed Pillar's claim to the trust funds, holding that the funds were advanced to support the settlement without any escrow agreement in Pillar's favour and were therefore available to satisfy the judgment.

The moving parties sought summary judgment dismissing a negligence, intentional tort, and Charter damages claim arising from the plaintiff’s involuntary detention for psychiatric assessment under the Mental Health Act.

The plaintiff alleged improper issuance and confirmation of a Form 1 and improper medical treatment during a brief detention at hospital.

The court held that medical malpractice claims require expert evidence establishing the applicable standard of care, breach, and causation.

The plaintiff filed no expert evidence and relied solely on allegations in the statement of claim, while the defendants filed expert reports confirming that the physicians’ conduct met the standard of care.

As no genuine issue requiring a trial was raised, summary judgment was granted dismissing the claims against the physicians and the hospital.

The Applicant brought a motion for summary judgment to reverse Tarion's denial of a warranty claim, and requested costs due to late disclosure by the Respondent and Added Party.

The Licence Appeal Tribunal dismissed the motion for summary judgment, finding that genuine issues of material fact existed regarding whether the defects were excluded from warranty coverage under the Ontario New Home Warranties Plan Act.

The Tribunal also denied the request for costs, noting that the late disclosure was inadvertent, did not cause undue prejudice, and did not meet the threshold for unreasonable or bad faith conduct.

The plaintiff masonry company brought an action for unpaid services under a verbal, cash-based contract for the installation of stone veneer and chimneys on the defendants' new home.

The defendants counterclaimed for the cost of remedial work, alleging the masonry was defective and not compliant with the building code.

The court found that both parties entered into an imprecise, 'under the table' arrangement and shared responsibility for the project's shortcomings.

Concluding that the plaintiff received less than expected but was entitled to less due to the final result, and that the defendants as builder/contractors bore responsibility for the conditions, the court dismissed both the main action and the counterclaim.

The applicants appealed a decision by Tarion Warranty Corporation denying their claims for reimbursement of a home inspector's invoice, replacement of hardwood flooring, and installation of a new kitchen sink in their new home.

The Licence Appeal Tribunal dismissed the appeal, finding that the cost of consultation services is not a prescribed damage under Regulation 892.

Furthermore, the claims for the flooring and sink were not warranted substitutions because the specific items requested by the applicants were not explicitly detailed in the written Agreement of Purchase and Sale.

The court determined costs following the dismissal of a summary judgment motion brought under Rule 20 of the Rules of Civil Procedure.

The plaintiff, as the successful party on the motion, sought full recovery of legal fees exceeding $9,000.

The moving defendants argued that no costs should be awarded or that costs should be in the cause, emphasizing that the motion was reasonably brought and that a key appellate authority relied upon by the court was released after the motion was argued.

The court found no evidence of unreasonable conduct or bad faith to justify substantial indemnity costs and instead awarded partial indemnity costs.

Costs were fixed at $5,500 payable forthwith.

The parties reached a settlement in the appeal.

The Court of Appeal for Ontario ordered that the matter be resolved according to the draft order filed.

The appellant appealed a summary judgment dismissing his medical malpractice claim against a hospital and two doctors for failing to diagnose a concussion.

The motions judge had dismissed the action under Rule 20 of the Rules of Civil Procedure.

The appellant argued that Rule 20 does not apply in Small Claims Court, relying on recent appellate jurisprudence.

The Divisional Court agreed that Rule 12.02 of the Small Claims Court Rules was the correct provision, but upheld the dismissal because the appellant had no expert evidence on the standard of care and the claim had no meaningful chance of success, rendering it a waste of time.

The appellants appealed a decision declaring that the respondent was not obligated to continue paying a 1% royalty on the manufacture and sale of products in jurisdictions where the underlying patents had expired.

The Court of Appeal upheld the application judge's interpretation of the commercial contract, finding that royalties were only payable where patent protection existed.

The Court also rejected the appellants' arguments that post-agreement inventions were covered by the contract and that the respondent was estopped from ceasing payments due to past inadvertent overpayments.

The appeal was dismissed.