Barry S. Greenberg

The appellant contractor appealed a trial judgment awarding the respondent subcontractor $852,416.50 for dewatering services and extra work on a municipal roadworks project.

The appellant argued the trial judge erred by admitting hearsay documents as business records and by inferring that the appellant had authorized the extra work by submitting the claims to the project owner.

The Divisional Court dismissed the appeal, finding the trial judge properly applied the business records exception under the Evidence Act and made factual findings supported by the voluminous record.

The applicant, a sub-contractor, sought summary judgment against the respondent directors for breach of trust under the Construction Act, seeking to declare the claim not compromised by a consumer proposal under the Bankruptcy and Insolvency Act (BIA).

The applicant argued that the respondents' use of trust funds for operations constituted misrepresentation or wrongful conduct, allowing the claim to survive the proposal's compromise of director claims.

The court dismissed the summary judgment motion, finding genuine issues requiring a trial, particularly regarding the respondents' knowledge of the breach of trust, whether their conduct was misrepresentation or wrongful/oppressive, the parties' understanding of the consumer proposal's "quittance" and whether Construction Act trust provisions survive a consumer proposal.

Credibility assessment and a more fulsome evidentiary record were deemed necessary.

The parties reached an agreement on the calculation of prejudgment interest and costs following a previous court ruling.

Prejudgment interest was determined to be $51,619.51, and costs were agreed upon at $128,129.17.

The endorsement details the agreed terms, including the impact of Rule 49 offers to settle on the breakdown of partial and substantial indemnity costs.

The court ordered that the approved judgment reflecting these terms shall be issued.

Atlas Dewatering Corporation sought prejudgment interest at an average rate of 1.8% from the commencement of proceedings, while Harvie Construction Inc. argued for the presumptive rate of 0.8%.

The court, applying section 130 of the Courts of Justice Act and principles from Graham v. Rourke, found that the 1% difference between the average rate and the presumptive rate was not significant enough to warrant deviation from the presumptive rate.

The court ordered the prejudgment interest rate to be 0.8%.

This case involved a contract dispute between a general contractor (Harvie Construction Inc.) and its dewatering subcontractor (Atlas Dewatering Corporation) concerning unpaid invoices for a municipal reconstruction project.

Atlas claimed breach of contract and unjust enrichment for base contract work and additional services.

Harvie asserted a fixed-price contract, a "pay when paid" arrangement for extras, and challenged the validity of Atlas's construction lien.

The court found Atlas's lien properly preserved, dismissed Harvie's counterclaim, and determined the contract terms were reflected in Atlas's "Second Quote" which allowed for additional charges beyond the lump sum.

The court rejected the "pay when paid" defense, finding it unreliable and inconsistent with the parties' conduct.

Atlas was awarded judgment for the outstanding balance, including approved and disputed additional work.

The appellants sought to overturn a motion judge's assessment of damages and obtain relief from forfeiture of a $400,000 deposit after failing to close a property purchase.

The Court of Appeal upheld the motion judge's decision, finding that the vendor was entitled to the full damages, and that the deposit was commercially reasonable, not disproportionate to actual damages, and there was no unconscionability or inequality of bargaining power to warrant relief from forfeiture.

The plaintiffs, including 1854329 Ontario Inc. and individual owners, brought a motion for summary judgment to claim a $400,000 deposit after the defendants, Angelo Cairo and Stouffville Glass Mirror and Aluminum 2012 Inc., failed to close a $7.25 million industrial property purchase.

The transaction failed due to the defendants' financing falling through, which they attributed to the COVID-19 pandemic.

The court previously dismissed the individual plaintiffs' claims but found the corporate plaintiff liable for breach of contract.

This endorsement addresses the quantum of damages and whether to grant equitable relief from forfeiture of the full deposit.

The court calculated the corporate plaintiff's actual damages at $234,849.18, including reduced sale price, increased realtor fees, additional legal expenses, and lost time value of money.

The court found no unconscionability to relieve the defendants from forfeiture of the full $400,000 deposit, noting the thin evidence of COVID-19 causation, the defendants' decision to waive financing conditions despite pandemic awareness, and lack of evidence regarding post-breach negotiations.

Summary judgment was granted to 1854329 Ontario Inc. for the full deposit amount.

The plaintiffs brought a motion for partial summary judgment in an action arising from a failed $7.25 million commercial real estate transaction.

The defendants failed to close due to lack of financing but argued the agreement was invalid and the seller's closing documents were deficient.

The court found the matter appropriate for summary judgment on liability but declined to grant partial summary judgment for the deposit, as the defendants' request for relief from forfeiture was intertwined with the overall damages claim.

The court granted summary judgment on liability in favour of the corporate plaintiff, finding the defendants breached the valid agreement.

The individual plaintiffs' claims were dismissed for lack of standing as they were not parties to the contract.

The plaintiff brought a motion seeking leave to amend its Amended Amended Statement of Claim to include new allegations of fraud, fraudulent misrepresentation, deceit, and punitive damages, claiming these were recently discovered.

The defendant opposed, arguing the amendments constituted a new cause of action barred by the Limitations Act and that they would suffer non-compensable prejudice due to purged records.

The court granted the plaintiff leave to amend, finding that leave under Rule 48.04(1) was not required for general amendments under Rule 26.01, and that the issues of discoverability and alleged prejudice from purged records were best determined by the trial judge.

The plaintiff real estate brokerage brought a motion for summary judgment for unpaid commission held in trust.

The defendant vendor claimed a set-off for damages resulting from the plaintiff's agent's alleged negligence regarding the property's acreage, and argued there was an oral collateral agreement reducing the commission.

Applying the Hryniak framework and appellate jurisprudence on partial summary judgment, the court found genuine issues requiring a trial, including credibility issues and the existence of a collateral agreement.

The motion for summary judgment was dismissed.

The plaintiff, Edward Sobie, as executor of Stanley Sobie's estate, brought a motion for a status hearing, a timetable, and an extension of time to set the action down for trial, and to reconstitute the action.

The defendants opposed and brought cross-motions to dismiss the action for delay, failure to properly constitute the action, and failure to obtain an order to continue.

The court found that the plaintiff failed to provide an acceptable explanation for the significant delay and did not establish that the defendants would suffer no non-compensable prejudice.

The court also found that the action was not properly constituted from its inception and that the plaintiff failed to obtain an order to continue after the property's transfer.

Consequently, the plaintiff's action was dismissed with costs.

The plaintiff and defendant both sought leave to amend their pleadings in an accounting dispute arising from a construction management contract.

The defendant opposed the plaintiff's proposed amendment, arguing it raised a new cause of action that was statute-barred under the Limitations Act.

The Master applied a broad approach to defining a cause of action and found the amendment was based on the same factual matrix as the original claim.

The Master also found that discoverability was a genuine issue for trial, as the plaintiff only received the defendant's general ledger recently.

Both parties were granted leave to amend their pleadings, with costs awarded to the plaintiff.

The tenants appealed a decision of the Landlord and Tenant Board on review, which had reversed an earlier order dismissing the landlords' application to terminate the tenancy for personal use.

The original Board Member found the landlords' notice was not given in good faith and that they were in serious breach of their responsibilities.

The reviewing Board Member found the original member erred by considering the reasonableness of the landlords' motives.

The Divisional Court allowed the appeal, holding that the reviewing member unreasonably restricted the meaning of 'good faith' by excluding consideration of motives, and unreasonably failed to address the landlords' serious breach of responsibilities.

The original order dismissing the termination application was restored.

The appellants appealed a Small Claims Court judgment that denied them a $10,000 fee for preparing a Professional Marketing Package to obtain mortgage financing.

The trial judge found the appellants were acting as unregistered mortgage brokers.

The Divisional Court dismissed the appeal, holding that the appellants were 'carrying on business' as mortgage brokers and that it would be contrary to public policy to allow an unregistered broker to enforce payment of a fee under the Mortgage Brokers Act.