Angela Assuras

The defendant moved to set aside a noting in default in a construction lien action, arguing that the statement of claim had not been properly served and that it did not come to its attention before the deadline to deliver a defence.

The court held that service was valid under both the Rules of Civil Procedure and the Construction Lien Act because the claim was left with a person appearing to be in control of the registered business address and was also served by registered mail to the address listed in a registered lien document.

The court further found the defendant failed to demonstrate a reasonable explanation for not defending, failed to establish a continuous intention to defend, and failed to provide evidence of a meritorious defence as required by s. 54 of the Act.

Bare denials and unsupported allegations regarding lien preservation, perfection, and alleged accounting discrepancies were insufficient.

The motion to set aside the noting in default was dismissed.

A defendant in a construction lien action moved to set aside a noting in default, alleging improper service of the statement of claim and lack of notice of the proceeding.

The court applied the test under the Construction Lien Act requiring a defendant to show a valid reason for default, a continuous intention to defend, and evidence of a meritorious defence.

The court found that service at the corporation’s publicly represented business address was valid and that the defendant failed to adequately explain its failure to respond.

The defendant also failed to provide any probative evidence supporting the alleged defences in its proposed pleading.

The motion to set aside the noting in default was therefore dismissed.

The appellant general contractor sued the respondent subcontractor for breach of contract after the respondent refused to commence work without an agreement for extra costs due to inaccurate tender documents.

The respondent counterclaimed for loss of profit and surveying costs.

The trial judge dismissed the appellant's claim and awarded damages to the respondent.

On appeal, the Divisional Court found that the substantial errors in the tender documents constituted a fundamental mistake that rendered the contract void.

Consequently, neither party was entitled to damages.

The appeal was allowed in part, setting aside the trial judgment in favour of the respondent.

The defendant brought a motion for leave to amend a statement of defence and add a counterclaim against a former solicitor, and for an order requiring delivery of the solicitor’s files relating to several matters.

The court reviewed the law governing solicitor’s liens and ownership of client file materials, including distinctions between documents belonging to the client and internal solicitor materials.

Where the solicitor’s conduct and entitlement to fees were disputed and potential prejudice to the client existed, the balance favored delivery of the client’s property.

The court granted leave to amend the pleading and ordered delivery of the relevant client files, subject to an exception for internal solicitor documents such as notes, time dockets, and internal memoranda.

Following trial reasons in a construction contract dispute, the court determined costs and interest issues on written submissions.

Although the plaintiff recovered part of its claim and defeated most of the counterclaim, the court held success was divided and exercised its discretion to make no order as to costs.

The court rejected arguments that the proceeding should have been transferred to Small Claims Court, largely because of the size of the counterclaim and the complexity of the matter.

The court also confirmed the presumptive prejudgment interest rate of 3.3% under the Courts of Justice Act and declined to average quarterly rates downward.

The appellant appealed a decision finding that Ontario lacked jurisdiction over its claim for conversion.

The appellant argued that three presumptive connecting factors under the Van Breda framework applied: a tort committed in Ontario, transfer of information, and personal property in Ontario.

The Court of Appeal dismissed the appeal, finding that the conversion took place outside Ontario, the transfer of information was unconnected to the tort, and the mere transfer of funds out of Ontario by the appellant was too tenuous a connection to assume jurisdiction.

A contractor sued a homeowner for the unpaid balance on a residential renovation contract, while the homeowner counterclaimed for disputed extras, incomplete work, and deficient workmanship.

The court, on a Rule 54 reference, held that the parties had agreed to progress payments tied to the value of work completed and that the homeowner fundamentally breached the contract by refusing any further payment and refusing to negotiate a reasonable compromise despite work having substantial value beyond amounts already paid.

The court conducted a detailed item-by-item review of disputed extras and credits, fixed the proper contract-plus-extras amount, and deducted credits for incomplete work and a further allowance for deficiencies.

Judgment was effectively awarded to the contractor for the net balance of $12,267.45 plus pre-judgment interest, with costs reserved and a preliminary view of no costs because of divided success.

The defendants sought an injunction restraining execution of a writ of possession arising from a mortgage default judgment.

They argued enforcement should be delayed while they pursued refinancing and separate litigation concerning a third mortgage that allegedly prevented refinancing.

The court held the defendants failed to establish a serious issue to be tried or identify any legal right being interfered with, as the plaintiffs held a valid judgment for possession and there was no existing forbearance agreement.

The alleged harms from eviction were compensable in damages and did not justify injunctive relief.

The motion was dismissed and costs were awarded to the plaintiffs.

The respondent and the deceased held title to their matrimonial home as joint tenants.

They were in the process of separating and dividing their matrimonial assets when the deceased died.

The respondent claimed exclusive ownership of the home through the right of survivorship.

The deceased's estate trustees brought an application for a declaration that the estate was entitled to an undivided, one-half interest in the matrimonial home, arguing the joint tenancy had been severed by a course of dealing.

The application judge dismissed the application.

The Court of Appeal allowed the appeal, finding that the application judge erred by adopting a category-based approach to the course of dealing test.

The spouses' conduct, including negotiating an equal division of assets and opening separate bank accounts, demonstrated they were mutually treating their co-ownership as a tenancy in common.

Following a prior costs endorsement awarding costs to the defendant, the defendant sought clarification regarding who was responsible for payment.

Evidence established that the plaintiff business operated as a sole proprietorship registered in the name of an individual who testified she was the sole proprietor.

The court rejected the plaintiff’s argument that it was functus officio and clarified its earlier endorsement.

The court held that the sole proprietor, as the alter ego of the business, was responsible for the costs award.

An order was issued directing the proprietor to pay the previously ordered costs.

The defendants in an oppression action brought a motion to vary an order of a Superior Court judge who had dismissed their motion for leave to appeal an interlocutory order.

The moving party relied on s. 21(5) of the Courts of Justice Act.

The Divisional Court quashed the motion for want of jurisdiction, holding that s. 21(5) only permits a panel to vary a decision of a judge who has heard a motion in the Divisional Court, not a Superior Court judge acting in a gatekeeper capacity for leave to appeal.

The appellant, a lawyer, retained the respondent law firm to assist her at a trial.

The respondent's initial estimate of costs was $50,000, but the final accounts exceeded $150,000.

The assessment officer found the accounts reasonable, noting the work was done at the appellant's behest, and the Superior Court dismissed the appellant's appeal.

The Court of Appeal dismissed the further appeal, finding no error in principle in the assessment officer's conclusion that the accounts were reasonable given the circumstances.

The plaintiff brought motions for leave to appeal two interlocutory orders that dismissed a motion to continue an ex parte Anton Piller order and dismissed subsequent motions for relief under Rules 30 and 45.

The Divisional Court dismissed the motions for leave to appeal, finding that the motion judge properly considered the matter de novo and correctly concluded that the plaintiff failed to establish a strong prima facie case to justify continuing the intrusive order.

The court found no reason to doubt the correctness of the orders and no denial of natural justice.

The appellant landlord appealed a trial judgment awarding damages to the respondent tenant for breach of a demolition clause in a commercial lease.

The appellant argued the trial judge erred in finding the breach caused the respondent to close its business, and that the respondent failed to properly renew the lease.

The Court of Appeal dismissed the appeal, finding no overriding error in the trial judge's factual conclusions on causation.

The Court also held the appellant was estopped from insisting on formal compliance with the lease renewal clause due to its past conduct of accepting oral renewals.

The appellants appealed an order declaring that they had repudiated Minutes of Settlement and lifting a stay in bankruptcy proceedings to allow the respondent's action to continue.

The Court of Appeal held that the motion judge erred in making the declaration of repudiation because the relief was sought by motion rather than by originating process.

However, the Court upheld the order lifting the stay, finding that the motion judge correctly concluded there had been repudiation in the context of the motion to lift the stay.

The appeal was allowed in part to quash the declaration, but dismissed regarding the lifting of the stay.

The appellants appealed a summary judgment enforcing two guarantees they provided for the indebtedness of their corporation.

The Court of Appeal found no error by the motion judge, concluding there was no triable issue regarding an enforceable agreement between the respondents and the corporation, nor any indication that such a contract was a term of the guarantee.

The appeal was dismissed with costs.

The appellants appealed an order striking their statement of claim against the respondent municipality.

The appellants argued the motion judge should have considered their motion to amend the statement of claim before striking it.

The Court of Appeal agreed but found the motion to amend would have failed due to inordinate, unexplained delay and prejudice to the respondent, including the expiry of limitation periods.

The unamended statement of claim disclosed no cause of action against the respondent.

The appeal was dismissed.

The appellants appealed the dismissal of their actions against a solicitor for breach of undertaking and against a corporate defendant for fraudulent conveyance.

The solicitor had released holdback funds after confirming with the architect that deficiencies were rectified, fulfilling the terms of the undertaking despite an initial breach.

The trial judge also found that the corporate defendant held the transferred property as a bare trustee, defeating the fraudulent conveyance claim.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error as the issues were primarily based on credibility assessments.

The appellant appealed a trial judgment finding that his debt to the respondent survived his discharge from bankruptcy due to a breach of trust.

The trial judge found the appellant engaged in reprehensible conduct, including filing false declarations that subcontractors had been paid, with the intent to deceive.

The Court of Appeal upheld the trial judge's findings that the appellant failed to account for project expenses and that his conduct exhibited a significant element of dishonesty, satisfying the requirements of s. 178.1(d) of the Bankruptcy and Insolvency Act.

The appeal was dismissed.

The appellant, a creditor of a bankrupt estate, sought to recover a debt from the proceeds of the deceased's RRSPs, which had been paid to the respondent as the designated beneficiary.

The Court of Appeal held that under section 53 of the Succession Law Reform Act, RRSP proceeds devolve directly to a designated beneficiary and do not form part of the deceased's estate.

Furthermore, the Court held that unpaid creditors of the estate have no claim against the RRSP proceeds in the hands of the beneficiary.

The appeal on the substantive issues was dismissed, but the appeal on costs was allowed, reducing the application judge's costs award.