Brian Campbell

Homeowners brought motions to amend their statement of defence and counterclaim to particularize defective installation of a radiant in‑floor heating system and to obtain summary judgment based on findings from the Licence Appeal Tribunal under the Ontario New Home Warranties Act.

The court held the amendment was not a new cause of action but merely a particularization of negligence already pleaded concerning the concrete foundation and construction defects.

Applying issue estoppel principles, the court found the Tribunal’s determination that the heating system constituted a major structural defect was a final judicial decision between the same parties and resolved the same issue.

Summary judgment was therefore granted on liability for breach of contract relating to the heating system, but damages were left for determination at trial.

Following the granting of summary judgment enforcing minutes of settlement and dismissal of a motion to amend pleadings, the successful party sought substantial indemnity costs exceeding $317,000, alternatively partial indemnity costs of approximately $205,000.

The opposing parties argued that substantial indemnity costs were inappropriate and that the fees claimed were excessive.

The court held that substantial indemnity costs were not justified but awarded costs on a partial indemnity basis.

Significant reductions were applied to the bill of costs due to duplication of effort among multiple counsel, excessive hours, and unreasonable expectations for certain attendances.

The court ultimately assessed partial indemnity costs at $145,258.54 plus HST and disbursements.

A homebuilder sought summary judgment enforcing minutes of settlement resolving a dispute over construction deficiencies and a $200,000 holdback on a luxury home contract.

The homeowners argued the settlement was unenforceable due to absence of executed releases, alleged duress, nondisclosure of a thermal imaging report identifying further deficiencies, and incomplete performance of settlement obligations.

The court held that settlement agreements are contracts requiring mutual intention and agreement on essential terms, and found the signed minutes constituted a complete and binding agreement.

The failure to exchange releases did not amount to repudiation because the obligation was mutual and both parties continued acting in accordance with the settlement.

Allegations of duress and nondisclosure were rejected on the evidence.

Summary judgment enforcing the settlement was granted.