Cameron D. Neil

The appellant sought to set aside a default judgment entered seven years earlier after her pleadings were struck for non-compliance with a costs order imposed as a condition of an adjournment.

The motion judge dismissed the motion, finding it was not brought promptly or pursued diligently and disbelieving the explanation offered.

On appeal, the court found no error in the motion judge's application of the test under Rule 19.08 for setting aside a default judgment, including findings of prejudice and tarnishing of the administration of justice.

The court considered a motion by the defendants (the Owners) for security for costs in a construction lien action.

The Owners argued that the plaintiff, Backyard XP Inc., was a shell company with insufficient assets to pay costs if unsuccessful.

The court found that the Owners met the threshold for security for costs and ordered Backyard to post $25,000, staggered in two tranches.

The court also addressed the impact of a counterclaim and apportioned the security accordingly.

Costs of the motion were awarded to the Owners, proportionate to their success.

This is a construction lien action and counterclaim arising from a fixed-price drywall contract.

The plaintiffs, Nikom Construction Inc. (contractor) and Invoice Payment System Corporation (factoring company), sued for unpaid invoices.

The defendant, The Block Inc. (owner), counterclaimed for damages due to alleged contract breaches, deficiencies, and abandonment by Nikom.

The court found that Nikom repudiated the contract by failing to provide adequate manpower and supervision, and by having significant deficiencies, rather than The Block repudiating by late payments.

The court also ruled that the "indoor management rule" did not bind The Block to unauthorized invoice approvals.

Consequently, the plaintiffs' action was dismissed, their liens discharged, and The Block's counterclaim for costs to complete and correct Nikom's work was granted in part, with the plaintiffs ordered to pay $325,824.41 plus pre-judgment interest.

The defendants, Mirella Cesario-Valela and Vito Valela (the 'Owners'), sought leave to issue a third-party claim against Garrison Creek Construction Inc. ('Garrison'), alleging it was an alter ego of the plaintiff, Backyard XP Inc. The court dismissed the motion, finding that under the Construction Act, a third-party claim must be for contribution or indemnity, not for damages as proposed by the Owners.

The court emphasized that the Act's scheme does not permit adding non-parties by counterclaim or third-party claim for general damages, even if judicial efficiency might suggest otherwise.

The appellants, purchasers of a new home, appealed an order declaring they repudiated an agreement of purchase and sale by failing to close and dismissing their counter-application for specific performance.

The Court of Appeal dismissed the appeal, finding no error in the application judge's conclusions.

The lower court correctly found that the vendor satisfied the requirements to extend the closing date due to "Unavoidable Delay" (COVID-19 related), was not obligated to deliver the occupancy permit before closing, and did not act in bad faith by refusing a further extension.

The appellate court affirmed the application judge's interpretation of the agreement and factual findings, noting they were entitled to deference.

The Corporation of the Town of Lincoln applied for declarations and a permanent injunction against multiple respondents for violating a municipal bylaw concerning fill importation and site alteration.

The respondents had contravened permit conditions, breached a stop work order, and continued illegal dumping.

While the Shire respondents conceded liability for the declarations and injunction, they disputed the scale and quantum of costs.

The Cascio respondents did not appear.

The court granted the declarations and permanent injunction, finding clear bylaw breaches and no exceptional circumstances to refuse the injunction.

The Town was awarded partial indemnity costs of $54,898, with responsibility apportioned 25% to the Shire respondents and 75% to the Cascio respondents, primarily due to the Cascio respondents' profit motive and failure to cooperate in shortening the proceedings.

This decision addresses the costs arising from a successful motion by a Judgment Creditor to enforce two notices of garnishment against funds held by Renaud Law on behalf of two Debtors.

The Judgment Creditor sought costs on a substantial or partial indemnity basis.

One Debtor requested deferral of the costs decision pending a motion to set aside the default judgment.

The court found the garnishment motion necessary and complex due to issues raised by the Debtors.

It declined to defer the costs decision, noting the delay by the Debtors in challenging the default judgment.

The court awarded the Judgment Creditor costs on a partial indemnity basis, finding the amount fair and reasonable.

The moving party sought costs for a motion for non-party productions.

The responding parties consented to the relief sought, but only after the moving party had prepared and filed its motion materials.

The moving party argued the motion was necessitated by the responding parties' failure to cooperate and obtain relevant records from their bank and accountant.

The court agreed, finding the responding parties had an obligation to inquire and obtain relevant documents, and their inaction necessitated the motion.

Costs were awarded to the moving party fixed at $5,000.

The plaintiff, Enercare, brought a motion to strike the defendant Grand HVAC's counterclaim under Rule 21.01(1)(b) for failing to disclose a reasonable cause of action.

The counterclaim alleged breach of contract and conversion regarding water heaters Grand HVAC claimed to have purchased from Enercare, and sought relief on behalf of customers.

The court granted the motion, finding the breach of contract and conversion claims lacked necessary material facts, but granted leave to amend.

Claims seeking relief on behalf of third-party customers were struck without leave to amend.

The appellant, Darlene Welton, appealed a trial judge's award of compensation for her services as Vice President of Marketing and Sales for Stonebrook Properties Inc., arguing it was inadequate on the facts and law.

The Court of Appeal dismissed the appeal on the merits, upholding the trial judge's quantum meruit assessment of 1.5% commission for sales and dismissing claims for additional construction and warranty work due to lack of evidence or reasonable expectation of payment.

However, the Court granted leave to appeal the trial costs award, finding the respondents' last-minute settlement offer unreasonable and not in the spirit of Rule 49, and awarded the appellant her pre-trial and trial costs.

The respondent (Stanley Capobianco) brought a motion to strike specific paragraphs from the applicant's (Paul Offierski) Statement of Defence and Counterclaim, arguing they were irrelevant, argumentative, scandalous, or disproportionate, particularly concerning costs and casting the respondent in a bad light.

The applicant contended the impugned paragraphs were relevant and responsive to the respondent's claims for punitive damages, legal expenses, and property appraisal fees, and to demonstrate the respondent's conduct.

The court dismissed the motion, finding the impugned paragraphs were responsive to the respondent's claims, not solely related to costs, and did not create disproportional complexity, especially given the nature of the respondent's own pleadings.

The appellant appealed a judgment of the Superior Court of Justice dismissing her motion to set aside her noting in default and granting default judgment to the respondent.

The appellant argued that the motion judge erred in his assessment of the merits of her defence.

The Court of Appeal affirmed the lower court decision, finding the appeal to be without merit and that there was no basis to interfere with the discretionary decision of the motion judge.

Costs were awarded to the respondent.

The plaintiff brought two actions against the defendants for unpaid commissions and remuneration for work on a technical audit related to a condominium development project.

The plaintiff claimed she had a verbal agreement for a 2% commission or $220,000 per year.

The court found no such agreement existed and instead applied quantum meruit, awarding the plaintiff $182,152.81 based on an industry-standard 1.5% commission rate.

The plaintiff's second claim for technical audit work was dismissed on the basis of unjust enrichment principles, as there was no reasonable expectation of payment.

The applicants sought an oppression remedy and monetary judgment against the respondents, alleging a scheme where the individual respondent and related corporations duped the applicants into investing over $1.6 million in a modular home business.

The investment was diverted through a "shell game" of corporations, depriving the applicants of their promised equity interest and decision-making role.

The court found clear self-dealing and oppression, granting the applicants the requested relief, including a monetary judgment equivalent to their investment.

The applicant sought injunctive relief and damages regarding a right-of-way over the respondents' land, alleging interference with its use and enjoyment, and requesting contribution to maintenance and snow clearing.

The court dismissed the application, finding that the right-of-way was limited to vehicular access to the applicant's garage, as determined by the instrument creating it and historical circumstances.

The respondents' fence was found not to substantially interfere with this purpose.

The court also determined that the destruction of stone pillars on the right-of-way was not unlawful given the land's Land Titles Absolute status, which extinguished possessory claims.

Furthermore, the respondents were not obligated to contribute to snow removal as they did not use the right-of-way in winter.

The claim for damages was dismissed as it could not be advanced by application.

Motion to determine priority to funds paid into court in a bankruptcy proceeding.

The trustee in bankruptcy sought determination of whether the respondent had a valid lien or secured interest in a trailer component installed before the bankruptcy and also sought reimbursement of prior interpleader costs.

The court rejected the respondent’s claim to a lien under the Repair and Storage Liens Act but found that the respondent had repossessed the trailer prior to the bankruptcy and therefore held a perfected security interest in the installed component under the Personal Property Security Act.

As a result, the respondent held a secured claim limited to the value of the component, with the remainder of its claim treated as unsecured.

The trustee’s request for reimbursement of costs relating to earlier proceedings was denied.

Shareholders and a director of two corporations brought an application seeking interim access to corporate books and records, including accounting records and source documents.

The respondents argued that the applicants already had sufficient financial information through electronic systems and financial statements.

The court held that under ss. 20 and 155 of the Canada Business Corporations Act and the applicable unanimous shareholders agreement, shareholders and directors have a broad and largely unconditional right to inspect corporate accounting records.

The term “adequate accounting records” includes source documents and records used to prepare financial statements, not merely the statements themselves.

The court granted the applicants immediate and unfettered access to specified corporate records but dismissed a related request for a restraining order as premature.

The plaintiff equipment leasing company brought a motion for summary judgment alleging fraud arising from equipment leases entered into with corporate defendants and individuals.

The plaintiff claimed it was induced by false representations to purchase and lease heavy construction equipment, much of which was not recovered after the leases went into default.

One individual defendant asserted she signed documents under the direction of another individual and lacked knowledge of the alleged misrepresentations, raising credibility issues.

The court held that the evidentiary record did not permit a full appreciation of the issues regarding that defendant and required a trial.

However, partial summary judgment was granted against the other individual defendant, who had not defended the action, for the liquidated damages amount.

The defendants brought a motion for summary judgment seeking dismissal of claims arising from a logistics services agreement.

The plaintiff alleged contractual entitlement to shortfall penalties, negligent misrepresentation, and breach of a duty of good faith.

The court held that the contract expressly barred shortfall penalties for periods shorter than a full fiscal year and refused to imply a term to allow recovery.

The court also dismissed the pre‑contractual misrepresentation claim based on an entire agreement clause and struck the good faith claim for failing to identify a contractual term performed in bad faith.

However, summary judgment was refused for alleged misrepresentations made during the contractual relationship, as factual disputes regarding falsity, reliance, and damages required a trial.