Angelo C. D’Ascanio

The appellant contractor appealed an arbitrator's decision which found that its letters to the respondent subcontractor did not constitute a 'claim made in writing' under their construction contract.

The arbitrator had distinguished between provisions requiring 'written notice of a claim' and 'claims made in writing', declining to apply established jurisprudence.

The Superior Court of Justice found this distinction to be an error of law.

Applying the established test, the court held that the appellant's correspondence did constitute an unsettled claim made in writing, thereby preserving its right of set-off.

The arbitrator's decision was set aside and the matter remitted for reconsideration.

The applicant sought leave to appeal an arbitrator's decision regarding a construction dispute.

The arbitrator had granted partial summary judgment to the respondent and dismissed the applicant's counterclaim, finding the applicant failed to provide a 'claim made in writing' as required by the contract.

The applicant also sought leave to appeal the arbitrator's award of contractual interest.

The Superior Court of Justice granted leave to appeal on the issue of whether the correspondence constituted a 'claim made in writing', finding it raised an extricable question of law.

However, the court denied leave to appeal the interest award, concluding it involved a question of mixed fact and law regarding contractual interpretation.

The defendants brought a motion to set aside an order to continue obtained by the plaintiff on requisition.

The parties had previously agreed to schedule a case conference to discuss how the action should be reconstituted following the original plaintiff's death.

Despite this agreement and knowing the issue was contentious, the plaintiff's counsel obtained the order to continue without notice.

The court found that the plaintiff's counsel failed to act in good faith and candour by obtaining the order while the issue was scheduled for a case management hearing.

The motion was granted and the order to continue was set aside.