Brendan Donald Bowles

Following the dismissal of Multiplex's motions for a sealing order and pleading amendments, and the granting of its motion to examine a non-party under Rule 31.10, the court determined the costs of the motions.

The court awarded PGH $11,000 in partial indemnity costs for the dismissed motions, finding Multiplex's conduct was not reprehensible or wholly devoid of merit to justify substantial indemnity costs.

The court deferred the costs of the successful Rule 31.10 motion, ruling that the non-party's costs would be determined if he seeks reimbursement, and PGH's liability for Multiplex's costs would be determined in the cause of the underlying fraud allegations.

Multiplex Construction Canada Limited brought motions for a sealing order concerning fraud allegations made against it and its officers, and alternatively, to strike references to its officers from the respondent's amended pleading.

Multiplex also sought a Rule 31.10 examination for discovery of a non-party, George Colk.

The court denied the sealing order, finding that the commercial and reputational interests cited did not meet the public interest requirement of the necessity test.

The motion to strike parts of the pleading was also denied, as it improperly attacked the evidentiary basis rather than the pleading's sufficiency.

The Rule 31.10 examination of Mr. Colk was granted, with specific terms for its conduct, but his request for upfront costs was denied, to be determined post-examination.

The defendants in a construction lien action brought a motion to amend their counterclaim to add two separate corporate entities and their principal as plaintiffs, or alternatively, to have the counterclaim proceed as a separate action.

The court held that the Construction Lien Act prohibits adding non-parties as plaintiffs by way of counterclaim.

However, the court granted leave to withdraw an admission regarding the contracting party and ordered that the proposed counterclaim be severed and proceed as a separate action to be tried together with the lien action.

The plaintiff, Carillion Construction Inc., brought a motion to compel answers to a refused question during the "executive discovery" of the City of Toronto's representative.

The question sought disclosure of all relevant facts known by a key City employee, Jelena Rekalic, or relayed by her to others or counsel.

The City argued that such communications were protected by solicitor-client and litigation privilege.

The court dismissed the motion, finding that the broad request for "every fact" conveyed by Ms. Rekalic would improperly trench upon privilege and effectively constitute a second discovery without leave, which is not permitted under the Rules of Civil Procedure.

The plaintiff brought a motion to set aside an order of a single judge of the Divisional Court, who had refused to quash the defendant's appeal of an order dismissing a motion to discharge construction liens.

The panel held that the original order dismissing the motion to discharge the liens was interlocutory, not final, because it did not finally determine the validity of the liens, which remained an issue for trial.

The motion was granted, the single judge's order was set aside, and the appeal was quashed.

This case conference addressed the scheduling of Carillion Construction Inc.'s motion for further productions against the City of Toronto and NORR Limited in a complex multi-party construction litigation concerning Toronto's Union Station project.

Carillion sought various production orders and a discovery completion deadline prior to a scheduled mediation.

The City and NORR argued for delaying the motion until after mediation, citing the volume of existing documents and the laborious process of retrieving new ones.

The court determined that Carillion's motion should proceed prior to mediation, finding no cogent reason to delay the argument, but indicated that the actual production of documents, if ordered, could potentially be deferred until after the mediation.

The court urged counsel to schedule the motion.

This case conference endorsement outlines procedural progress in a complex, multi-party construction litigation involving Carillion Construction Inc., the City of Toronto, and NORR Limited, among others.

The court addressed the schedule for executive discoveries, ruling that they must proceed as planned, contrary to the City's submission.

It also confirmed the mediation schedule for March-April 2019, involving various claimants and insurers.

Further directions were given regarding documentary production by subcontractors and the City's amended third-party claim against Metrolinx, setting deadlines for Metrolinx's response or motion.

The plaintiff brought a motion to quash the defendant's appeal to the Divisional Court from an order dismissing the defendant's motion to discharge a construction lien.

The plaintiff argued the order was interlocutory and therefore no appeal was permitted under s. 71(3) of the Construction Lien Act.

The court held that the order was final because it deprived the defendant of a substantive defence that would have ended the lien action and enabled the return of posted security.

The motion to quash the appeal was dismissed.

The plaintiff brought a motion to quash the defendant's appeal to the Divisional Court from an order dismissing the defendant's motion to discharge a construction lien.

The plaintiff argued the appeal was barred by s. 71(3) of the Construction Lien Act because the underlying order was interlocutory.

The court dismissed the motion to quash, finding that the underlying order was final because it deprived the defendant of a substantive defence that would have ended the lien action and allowed for the return of posted security.

The defendant brought an unsuccessful motion for summary judgment to dismiss the plaintiff's multi-million dollar construction delay claim.

The court determined that the summary judgment motion was a bold and risky tactical strategy in a complex case where a trial was inevitable.

The plaintiff was awarded partial indemnity costs for the main summary judgment motion and the related leave motion, while the defendant was awarded costs for a successful production motion, resulting in a net costs award of $145,878.62 payable to the plaintiff.

The defendant general contractor brought a motion for summary judgment to dismiss the plaintiff subcontractor's $11.1 million delay claim, arguing the plaintiff failed to provide strict contractual notice of the delay.

The plaintiff argued that the defendant had actual notice and that strict compliance was not required given the surrounding circumstances.

The court dismissed the motion, finding that the issues of notice, credibility regarding backdated letters, and the complex factual matrix of the construction delay raised genuine issues requiring a full trial.

The general contractor, Brookfield, sought leave under section 67 of the Construction Lien Act to bring a motion for partial summary judgment.

The motion aimed to strike the delay portion of the subcontractor Limen JV's lien claim, alleging failure to provide proper notice of delay as required by contract.

Limen JV opposed, arguing that complex factual and credibility issues necessitated a full trial and that a partial summary judgment motion would cause delay.

The Master granted leave, finding that the proposed motion would likely expedite the resolution of the dispute by narrowing the issues for trial, particularly regarding the notice of delay claim, and was consistent with the Hryniuk objectives for summary judgment.

The plaintiff, a construction manager, moved for an order to compel the appointment of an expert to determine if project delays constituted a "material change in scope" under the contract, which would entitle them to additional compensation beyond a fee cap.

The court dismissed the motion, finding that delay itself was not a change in scope as defined by the contract, but rather a consequence.

The court also held that the specific dispute regarding materiality had not yet crystallized, rendering the motion premature, and declined to grant leave under the Construction Lien Act in the current circumstances.

The appellant appealed a Master's order denying leave to amend its statement of claim to add its former solicitors as defendants in a breach of trust action.

The appellant alleged the solicitors negligently failed to properly register a construction lien.

The Divisional Court allowed the appeal, finding the Master erred in law by relying on compensable prejudice (delay and expense) to deny the amendment under Rules 26.01 and 5.04(2), and made a palpable and overriding error of fact by concluding the negligence claim was contingent on the outcome of the breach of trust action.

Leave to add the solicitors as defendants was granted.

The defendant homeowners brought a motion for partial summary judgment seeking a declaration of their maximum holdback obligation under the Construction Lien Act and dismissal of the subcontractor’s claim against them beyond that amount.

The court considered whether the subcontractor’s second lien could enforce a holdback arising from services supplied prior to the discharge of an earlier lien and whether the project involved one continuing contract or a new contract after a hiatus in work.

The court held that once the first lien was discharged, the subcontractor’s lien rights for earlier services were extinguished and could not be revived.

Even if the later agreement constituted a continuation of the original contract, the subcontractor’s lien rights relating to earlier work had expired or were waived.

The owners’ holdback obligation was limited to ten percent of the value of services supplied after the later contract resumed.

The moving parties sought a stay of five construction lien actions commenced by the construction manager and general contractor, arguing the disputes were subject to contractual arbitration clauses.

The dispute arose from a large construction project involving numerous subcontractors and more than fifty lien claims consolidated into a construction lien reference under the Construction Lien Act.

The court considered whether arbitration should proceed despite the risk of multiplicity of proceedings and the exclusion of subcontractor lien claimants from the arbitral process.

The court held that the moving parties had waived arbitration by first commencing litigation, had delayed unduly before seeking arbitration, and that a stay would cause unfairness and fragmented proceedings.

Exercising discretion under the Arbitration Act, 1991 and the Courts of Justice Act, the court refused the stay so that all disputes could proceed in the single court reference.

This supplementary costs decision followed a motion in which the plaintiff obtained leave to amend its statement of claim to substitute new defendants on the basis of misnomer.

Although the plaintiff was successful on the underlying motion, the court held that no costs order should be made because both sides were roughly equally responsible for the circumstances giving rise to the motion.

The court noted both the use of a non-existent entity name by the principal of the defendant side and the plaintiff lawyer's failure to conduct basic corporate or real estate searches before issuing the claim.

The plaintiff brought a motion for leave to amend its statement of claim to substitute two corporate defendants after discovering that the originally named defendant corporation never existed.

The proposed substitutions were sought on the basis of misnomer under Rules 5.04(2) and 26.01 of the Rules of Civil Procedure.

The court held that the circumstances constituted misnomer because the litigation was clearly directed at corporations controlled by the same principal, and a reasonable reader would understand that the claim was intended for those entities.

The court further found no non‑compensable prejudice, as the proposed defendants had knowledge of the claim and had effectively defended the action from the outset.

Leave to amend and substitute the proper corporate defendants was granted, and the substituted defendants were ordered to satisfy a prior interlocutory costs order.

The defendants sought leave to appeal a decision awarding costs of $15,000 to the plaintiff and ordering two Brampton lien actions to proceed peremptorily.

The Divisional Court dismissed the motion for leave to appeal.

The court held that the scheduling order was interlocutory and not appealable under the Construction Lien Act.

Regarding costs, the court found no error in principle in the motions judge's decision to award costs against the successful defendants, as they had reversed their position on proceeding by a Rule 21 motion, resulting in costs thrown away.

The appellants appealed an order requiring them to return a deposit paid by the respondent for a franchise.

The trial judge had found substantial non-disclosure of material facts amounting to fraudulent misrepresentation, rendering the agreement void.

The appellants argued the trial judge failed to articulate the proper burden of proof for fraud.

The Court of Appeal dismissed the appeal, holding that an appellate court should not presume a trial judge failed to apply the correct legal test merely because it was not explicitly stated in the reasons.

The court also upheld the finding that there was no meeting of minds on essential terms.