Angela Assuras

The defendant moved to dismiss a construction lien action on the basis that the plaintiff lacked legal capacity to commence it.

The court held that the individual who directed the corporation to register the lien and instruct counsel was an undischarged bankrupt, that his shares had vested in his trustee in bankruptcy, and that the corporation had been without any directors for four years.

Although the corporation remained a separate legal person, the court found it plain and obvious that its officer lacked delegated authority to commence the proceeding and that only the trustee, as beneficial owner, could have authorized the litigation or ratified it.

Because the trustee neither authorized nor ratified the proceeding, the claim was a nullity and was dismissed as an abuse of process.

The plaintiff, an architectural design firm, sued the defendants for unpaid invoices relating to three construction projects.

The plaintiff alleged breach of contract and breach of trust under the Construction Act.

The defendants counterclaimed for damages, alleging the plaintiff caused project delays by withholding final drawings and made misrepresentations to the municipality.

The court found the corporate defendants and their principal liable for breach of trust regarding the main project, and the principal personally liable for an oral contract on a referral project.

The counterclaim was dismissed as the defendants failed to prove the plaintiff was solely responsible for the delays or made any misrepresentations.

Judgment was granted to the plaintiff for $33,572.73.

The applicant, a 50% shareholder in two family-owned corporations, brought a motion for interim costs to fund an oppression application against her former spouse and the corporations.

The court applied the two-part test from Alles v. Maurice under s. 249(4) of the OBCA.

While the court found the applicant had established a case of sufficient merit based on the respondents' failure to provide financial statements, the motion was dismissed because the applicant failed to provide sufficient evidence of her financial circumstances to prove that pursuing the claim would unreasonably reduce her standard of living.

This costs endorsement addresses the appropriate scale and quantum of costs following a trial between Heywood Innovative Solutions Inc. and The State Group Inc. regarding unpaid invoices and a counterclaim for damages.

The court found divided success, with Heywood more successful overall, and awarded partial indemnity costs and disbursements, but at a significantly reduced amount due to concerns about proportionality and litigation conduct.

The plaintiff, Heywood Innovative Solutions Inc., brought an action against the defendant, The State Group Inc., seeking payment of outstanding invoices for pipeline coating inspection services.

The defendant counterclaimed, arguing that the plaintiff's failure to provide daily inspection reports constituted a fundamental breach of contract that deprived them of the contract's benefit.

The court found that while the contract did require the daily reports and the plaintiff breached this term, it did not amount to a fundamental breach.

Consequently, the court ordered the defendant to pay the outstanding invoices, subject to a set-off for damages caused by the plaintiff's breach, resulting in a net award of $164,577.54 to the plaintiff.

The trial concerned a counterclaim by Daro Industries Inc. and Robert Danninger against Innocon and Lafarge Canada Inc. for breach of contract (Sale of Goods Act), negligence, and defamation, arising from the delamination of a self-levelling floor screed product, Fina, supplied by Lafarge for a high-rise construction project.

Daro alleged the Fina was defective due to limestone filler causing delayed hydration and expansion.

Lafarge contended the delamination was due to Daro's improper installation, including inadequate primer application and uncontrolled environmental factors.

The court dismissed the counterclaim, finding Daro failed to prove the Fina was defective or that Lafarge was negligent or defamed Daro.

The court concluded the delamination was more likely due to Daro's installation deficiencies and site conditions.

The appellant contractor appealed a trial judgment that granted the respondent subcontractor a personal judgment for a structural steel subcontract and a valid lien for a miscellaneous metals subcontract.

The respondent cross-appealed the trial judge's finding that its lien rights for the structural steel subcontract had expired because they were not preserved separately from the miscellaneous metals subcontract.

The Divisional Court dismissed the appeal and allowed the cross-appeal, holding that under the Construction Lien Act, a subcontractor's lien rights do not expire on a subcontract-by-subcontract basis, but rather persist until 45 days after the date of last supply of services or materials to the improvement.

The respondent was granted judgment and lien remedies for the aggregate amount of both subcontracts.

The appellants appealed a trial judgment ordering them to pay $160,171.70 in quantum meruit for cottage renovation work and $256,163.05 in substantial indemnity costs.

The appellants argued the remediation work was a fixed-price contract and that quantum meruit should not apply to customized goods left in the contractor's warehouse after the appellants terminated the project.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the contract was not fixed-price and that the contractor was entitled to reimbursement for the customized goods.

The substantial indemnity costs award was upheld due to the appellants' unproven and aggressively maintained allegations of fraud.

The appellant appealed a trial judgment and costs endorsement regarding a construction contract dispute.

The trial judge had found the appellant's evidence not credible, rejected its claims for extras, and accepted the respondent's evidence regarding back charges and costs to complete.

The Divisional Court dismissed the appeal, finding that the trial judge's factual findings were available on the record and her approach to contract accounting was correct.

The appeal was dismissed with costs of $7,500 awarded to the respondent.

The plaintiff brought a motion seeking three orders: an affidavit of documents from the individual defendant, an adjournment concerning the corporate defendants, and copies of documents subject to a prior request.

The court denied the first two requests, deeming the affidavit premature and lacking jurisdiction for the adjournment given the corporate defendants' default status.

However, the court granted the request for document copies, emphasizing the importance of common sense and the liberal construction of the Rules of Civil Procedure over strict adherence to Rule 30.04(3) regarding document inspection location.

No costs were awarded due to divided success.

The plaintiff flooring contractor sued the defendant general contractor for unpaid invoices relating to the installation of a concrete urethane floor in a brewery.

The general contractor counterclaimed and brought separate actions against the flooring subcontractors and the product manufacturer, alleging the floor was negligently installed and defective.

The court found that the alleged defects were cosmetic and resulted from the general contractor's decision to substitute a cheaper flooring product without the designer's approval, as well as poor maintenance by the brewery.

The court granted the plaintiff's claim for unpaid invoices and dismissed the general contractor's counterclaim and third-party actions.

The appellants brought a motion to traverse their appeal to the Divisional Court.

The respondent consented to the transfer early on a without-costs basis, but the appellants unreasonably refused and sought costs against the respondent's counsel personally without basis.

The court granted the transfer on consent and awarded the respondent substantial indemnity costs of the motion due to the appellants' unreasonable conduct.

Following a lengthy contract dispute where the defendant was wholly successful, the defendant sought costs against the plaintiff.

The court found that the plaintiff had registered a grossly inflated construction lien, failed to make or accept reasonable settlement offers, refused to admit facts, and engaged in spoliation of evidence.

Applying the costs provisions of the Construction Lien Act and the Rules of Civil Procedure, the court awarded the defendant substantial indemnity costs of $135,000.

The court declined to hold the plaintiff's principal personally liable for costs as he was not a party to the proceeding and no finding of fraud was made against him.

The defendants brought a motion to discharge a construction lien and dismiss the action, alleging the plaintiff, Kamlu Engineering Inc., repeatedly breached court orders regarding document production, discovery scheduling, appointment of counsel, attendance at hearings, and payment of costs.

The court dismissed the defendants' motion, finding that while Kamlu had demonstrated non-compliance and delay, its conduct did not warrant the severe sanctions of discharging the lien and dismissing the action.

The court noted that some breaches had been cured and that any non-compliance could be addressed through costs.

The plaintiff subcontractor sued the defendant contractor for unpaid invoices and registered a construction lien regarding a school gymnasium project.

The defendant counterclaimed for back charges due to the plaintiff's delays and failure to complete the contracted steel fabrication and erection work.

The court found the plaintiff breached the contract by failing to perform the work on schedule, entitling the defendant to back charges.

The court awarded the plaintiff a reduced amount of $20,000, calculated as the remaining contract balance less the defendant's proven back charges.

The applicants brought an application under the oppression remedy provisions of the Canada Business Corporations Act.

The court heard three motions: the applicants' motion to convert the application into an action, the applicants' motion for contempt against the respondents, and the respondents' motion to vary a previous order regarding monthly payments and benefits.

The court granted the motion to convert the application into an action due to numerous material facts in dispute.

The contempt motion was dismissed, as the respondents had made good faith efforts regarding disclosure, and contempt is not available for orders for the payment of money.

The respondents' motion was partially granted to terminate the obligation to provide a benefits plan, but the monthly payment obligation remained.

Following a lengthy construction lien trial where the plaintiff recovered approximately $100,000 of a $250,000 claim, the plaintiff sought costs of over $239,000.

The court found that while the plaintiff was ultimately successful in obtaining a net judgment, the defendant was overwhelmingly successful on the central issue of charge-backs.

Applying principles of proportionality and considering the plaintiff's exaggerated lien claim and unreasonable litigation conduct, the court significantly reduced the plaintiff's costs, awarding a total of $87,226.43 inclusive of disbursements and HST.

The plaintiff moved to oppose the confirmation of an associate judge's report in a construction lien reference.

The associate judge had awarded the plaintiff damages but applied a set-off because the plaintiff unilaterally installed a different, cheaper epoxy than specified in the contract.

The associate judge also declined to award 24% interest and awarded $140,000 in partial indemnity costs.

The Superior Court of Justice dismissed the motion, finding no errors of law or palpable and overriding errors of fact in the associate judge's determinations regarding the set-off, interest rate, or costs.

Following the dismissal of the plaintiff's action after a seven-day trial, the successful defendant sought costs of $26,010.98.

The plaintiff argued for reductions based on an unsuccessful Wagg motion, alleged duplication of work, late disclosure, and financial hardship.

The court deducted $1,500 for the unsuccessful Wagg motion but rejected the other arguments, noting the defendant's claim was already modest and hardship is not an enumerated factor under Rule 57.01.

Costs were fixed at $24,500.

Following a trial where the plaintiff achieved partial success in a partnership dispute, the parties made submissions on costs.

The defendants had made a Rule 49 offer to settle 19 years into the litigation.

The court found that the defendants beat their offer when comparing the trial judgment plus the plaintiff's costs up to the date of the offer.

Applying Rule 49.10(2), the plaintiff was entitled to partial indemnity costs up to the offer date, and the defendants were entitled to partial indemnity costs thereafter.

The court declined to reduce either party's entitlement based on conduct or divided success, resulting in a net costs award of $179,174.88 payable to the plaintiff.