Anthony Joseph Imbesi

A building supplies distributor brought a motion for summary judgment against a construction contractor and its directors for unpaid invoices totalling approximately $254,393.30 (including interest).

The contractor disputed the amount owing and raised a set-off for work performed on an unrelated project.

The court found the action suitable for summary judgment and granted it to the plaintiff.

The court held that the contractor was required to apply payments as allocated by the plaintiff, not as the supplier attempted to reallocate them.

The court also found the contractor liable for breach of statutory trust obligations under the Construction Act for failing to maintain separate trust accounts and for failing to provide an accounting of trust funds.

The directors were found jointly and severally liable for the breach of trust.

The court awarded damages to be calculated in accordance with its reasons and fixed costs at $30,000 inclusive of HST.

This costs endorsement follows the dismissal of an appeal by the Defendants, David Wu and Opus Fitness Investment Inc., against a decision of Associate Justice Perron.

The Defendants argued that the Plaintiff, Ottawa Credit Exchange Limited, increased costs by raising a new argument on appeal.

The Court disagreed, finding the Plaintiff’s argument was responsive and that the Defendants themselves increased costs by raising an unfounded jurisdictional argument.

The Court awarded costs to the Plaintiff in the amount of $4,881.60, inclusive of HST.

Ottawa Credit Exchange Limited (OCEL) brought a motion seeking the production of four categories of documents from the defendants, David Wu and Opus Fitness Investment Inc., related to a commercial dispute involving a management buyout and reorganization.

The defendants argued that the requested documents were not and had not been in their possession, control, or power.

The court dismissed OCEL's motion, finding that the defendants had no possession, control, or power over the documents sought, including emails from a personal account already searched, BBM messages from a company-owned device returned before litigation, and privileged communications with corporate counsel.

This costs endorsement addresses the "sunk/wasted" costs incurred by the respondent, Leeds Standard Condominium Corporation No. 41 (LSCC 41), in an application that was stayed pending arbitration.

The court had previously awarded $30,000 in partial indemnity costs and remained seized for any outstanding costs not covered by the arbitration.

LSCC 41 sought an additional $64,797.63, arguing minimal reuse of application materials in the arbitration.

The applicant, Tall Ships Landing Developments, contended there was significant reuse.

The court found substantial overlap in materials and allegations, rejecting LSCC 41's premise.

Applying the principle of reasonableness, the court fixed LSCC 41's additional "sunk/wasted" costs, including costs for the current submissions, at an all-inclusive amount of $15,000.