Brett Rideout

The appellants, six defendants in a construction dispute, appealed a motion judge's decision dismissing their request to permanently stay the action.

They argued that a partial settlement between the plaintiff (respondent) and three other defendants (including an insurer) was not immediately disclosed, constituting an abuse of process.

The settlement involved the plaintiff assigning claims to the insurer and contemplating a Pierringer Agreement.

The motion judge found the settlement did not significantly alter the litigation dynamics to require immediate disclosure and that disclosure, if required, was immediate.

The Court of Appeal upheld the motion judge's finding that the settlement did not significantly alter the litigation dynamics, emphasizing that the claims against the settling parties were fundamentally distinct from those against the appellants, and the use of the term "Pierringer Agreement" was not determinative without a substantive change in adversarial positions to cooperative ones.

The appeal was dismissed.

The moving defendants sought an order staying the plaintiff's action as an abuse of process due to the plaintiff's alleged failure to immediately disclose a settlement agreement with other defendants (Catlin Canada Inc., The Regional Municipality of York, and The Regional Municipality of Durham).

The plaintiff brought a cross-motion for leave to amend its Statement of Claim to reflect the settlement and limit claims against non-settling defendants to their several share of liability.

The court dismissed the motion to stay, finding that the partial settlement did not entirely change the litigation landscape in a way that significantly altered the dynamics, and that the disclosure made was sufficient given the circumstances.

The plaintiff's cross-motion to amend was granted.

The moving party, a third-party property manager, sought summary judgment to dismiss claims for contribution and indemnity brought by the defendant plumbing company.

The defendant had settled property damage claims with the plaintiff tenants following a flooding incident.

The third party sought to amend its pleadings to rely on a limitation of liability clause in the commercial leases, which barred claims against the landlord and persons for whom the landlord is legally responsible.

The court allowed the amendment, finding no non-compensable prejudice.

The court then interpreted the lease and concluded that the third party, as the operator of the building automation system, fell within the category of persons for whom the landlord was legally responsible.

Because the plaintiffs were barred from suing the third party directly, the defendant could not claim contribution and indemnity.

The motion for summary judgment was granted.

Following earlier motions seeking dismissal of two civil actions for delay, the court had dismissed the motions to dismiss but granted alternative relief compelling compliance with prior court orders, including outstanding undertakings.

The defendants and third party sought costs.

The court found that the plaintiffs had violated multiple court orders and allowed the actions to stagnate for several years, making the motion justified.

Applying Rule 57 and the fairness principles from Boucher, the court held that although the moving parties achieved only partial success, the plaintiffs’ conduct warranted a costs award.

Reduced costs were therefore ordered against the plaintiffs jointly and severally.