Charles C. Chang

This decision concerns a re-assessment of damages in a breach of contract action, remitted by the Court of Appeal due to insufficient evidence in the initial trial.

The plaintiff, Fermar Paving Limited, sought damages from the defendant, 567723 Ontario Limited, for increased costs of aggregate and out-of-pocket expenses after the defendant repudiated a supply agreement.

The court found the plaintiff's evidence regarding the increased cost of aggregate to be largely inadmissible and unproven, particularly concerning cost estimates and missing source documents.

However, the court awarded damages for certain out-of-pocket costs that were adequately substantiated.

The moving parties (defendants) sought an order requiring the plaintiff to re-attend an examination for discovery to answer questions regarding damages, mitigation, and governmental land regulation issues.

The plaintiff opposed the motion, arguing it was a delaying tactic.

The court partially granted the motion, ordering the plaintiff to re-attend for two hours to be examined on the issue of damages, finding it proportionate given the $300,000 claim.

However, the court declined to order further examination on the governmental land regulation documentation, as it was not satisfied the plaintiff could provide relevant evidence on that matter.

This is an appeal from a trial judgment finding breach of contract and awarding damages.

Fermar Paving Limited (Fermar) sued 567723 Ontario Ltd. o/a Winter’s Pit (Winter’s Pit) for repudiating an agreement to supply aggregate.

The Court of Appeal upheld the trial judge's finding that a valid contract existed and was repudiated by Winter's Pit, dismissing the appeal on liability.

However, the Court found that the trial judge erred in quantifying damages due to insufficient evidentiary support, as the calculations relied on summaries without the underlying source documents or expert testimony.

Consequently, the damages award was set aside, and the issue of damages was remitted to the Superior Court for re-quantification.

No costs were awarded due to divided success.

This costs endorsement followed an unsuccessful summary judgment motion brought by the defendants.

The plaintiff sought costs totaling $37,358.51, arguing for substantial indemnity from November 19, 2018, due to an Offer to Settle.

The court found the Offer to Settle lacked a true element of compromise and did not trigger substantial indemnity costs.

Applying principles of fairness, proportionality, and reasonableness under the Courts of Justice Act and Rule 57.01, the court awarded the plaintiff $20,000 in partial indemnity costs, inclusive of costs thrown away and disbursements, noting the motion's importance but not its complexity.

The appellant general contractor appealed from summary judgments granted to two sub-subcontractors in a consolidated construction lien action.

The appellant argued the motion judge erred by granting judgment without evidence of the value of the work done by the subcontractor, misinterpreting the holdback provisions of the Construction Lien Act, and improperly placing the evidentiary burden on the appellant to establish the quantum of its liability.

The Divisional Court dismissed the appeal, finding that the liens were not restricted to the basic holdback and that the appellant failed to provide evidence of the amount it owed to the subcontractor, which was a fact within its knowledge.

This decision addresses a costs motion following a successful summary judgment motion in favour of Frank Hieblinger, a defendant by counterclaim.

Hieblinger sought full indemnity costs of $57,604.21, while Lorenzo D’Urso, the plaintiff by counterclaim, argued for partial indemnity costs of $17,909.06.

The court awarded full indemnity costs to Hieblinger, finding D’Urso’s $11 million counterclaim against Hieblinger to be entirely baseless, frivolous, and an abuse of the litigation process, constituting reprehensible conduct.

The court also found the quantum of costs sought by Hieblinger to be reasonable given the complexity, importance of the matter, and D'Urso's conduct in unnecessarily lengthening the proceedings and failing to respond to settlement offers.

The plaintiff, Fermar Paving Limited, sued the defendant, 567723 Ontario Limited (Winter's Pit), for breach of a contract to supply granular aggregate for a highway construction project.

The defendant repudiated the agreement, citing license limitations and other disputes, instructing the plaintiff to remove its equipment.

The court found the September 1, 2010 agreement to be legally binding and enforceable, rejecting arguments of illegality, vagueness, uncertainty, frustration, and non est factum.

The court determined that the defendant breached the contract by repudiation and awarded the plaintiff damages for the increased costs of sourcing aggregate from alternate suppliers.

Frank Hieblinger moved for summary judgment to dismiss a counterclaim brought against him by Lorenzo D’Urso.

D’Urso argued it was an inappropriate partial summary judgment motion.

The court found it was a rare case where partial summary judgment was appropriate, as it would dispose of the action against Hieblinger entirely without risk of inconsistent findings or undue delay.

The court found D’Urso failed to raise any genuine issue against Hieblinger, whose role was limited to executing assigned tasks without decision-making authority.

D’Urso's own cross-examination admissions negated his allegations.

The motion was granted, and the counterclaim against Hieblinger was dismissed.

The appellant purchased an agreement of purchase and sale for a property containing a pub-style restaurant, golf course, residential apartments, and other amenities.

A dispute arose regarding whether the residential apartments constituted a legal non-conforming use under applicable zoning by-laws.

The appellant refused to close, claiming the deficiency was not remedied.

The motion judge dismissed the appellant's motion for summary judgment and the action, finding the appellant had waived its objection through conduct.

The Court of Appeal reversed, holding that the appellant had not communicated an unequivocal and conscious intention to abandon its right to rely on the deficiency, and therefore was entitled to return of deposits.

The appellant appealed an order discharging a Certificate of Pending Litigation (CPL) that it had obtained ex parte.

The Master had discharged the CPL on the grounds of material non-disclosure and that the appellant did not have a reasonable claim to an interest in the land based on an easement for a storm water pond.

The Divisional Court dismissed the appeal, finding that the Master did not exceed her jurisdiction, made no palpable and overriding error in finding material non-disclosure, correctly concluded that the preconditions for the easement had not been met, and did not exhibit a reasonable apprehension of bias.

The plaintiff subcontractor brought a motion for summary judgment on its construction lien claim against the general contractor.

The general contractor failed to file any responding materials and relied solely on its pleadings and technical arguments.

The court granted summary judgment, finding no genuine issue requiring a trial as the general contractor had admitted the supply of services and materials and had no evidence to dispute the quantum or timeliness of the lien.

The plaintiff sought the return of deposits paid for a property, bringing a motion for summary judgment on the basis that the property's residential tenancy use could not be lawfully continued.

The defendant argued that the plaintiff had waived this objection.

The court dismissed the plaintiff's motion and granted summary judgment to the defendant, finding that the plaintiff had, through its conduct and amendments to the Agreement of Purchase and Sale, communicated an unequivocal intention to abandon its right to terminate the agreement based on the use objection.

The respondents brought a motion to extend the time to deliver responding materials until after the disposition of their motion to quash the appeal.

The appellants brought a cross-motion to have the motion to quash heard together with the appeal.

The court granted the respondents' motion and dismissed the cross-motion, noting that under the Practice Direction, a motion to quash based on jurisdiction is to be scheduled at an early date.

The appellants' refusal to consent was unreasonable, and costs were awarded to the respondents on a substantial indemnity basis.

Fermar Paving Limited brought a motion seeking a declaration that Toronto Zenith Contracting Limited's construction lien had expired, arguing it was not preserved within the 45-day limitation period mandated by the Construction Lien Act.

Toronto Zenith contended its lien was timely, asserting that off-site preparatory work performed during a scheduled winter shutdown constituted ongoing subcontract responsibilities and lienable supply, thereby extending the preservation period.

The court found that the winter shutdown did not terminate Toronto Zenith's ongoing subcontract obligations and that the off-site work added value to the improvement, rendering the lien timely and valid.

Fermar's motion was dismissed with costs.

The plaintiffs brought a motion seeking to compel the defendants to fulfill outstanding undertakings and answer numerous refusals arising from examinations for discovery in a commercial dispute involving alleged breach of contract and trademark infringement related to restaurant businesses.

The court reviewed whether undertakings had been adequately fulfilled and whether refusals were proper under the Rules of Civil Procedure governing relevance and proportionality.

Most undertakings were found to have been adequately answered and most refusals were upheld as proper because the requested information was irrelevant, duplicative, disproportionate, or related to events after the parties’ business relationship ended in September 2011.

The court ordered compliance with only two undertakings and several limited refusals concerning investors and accounts tied to a key restaurant entity before September 2011.

The plaintiffs’ motion was otherwise dismissed and costs were awarded to the defendants.

The appellant appealed a trial judge's finding that its claim for breach of contract was statute-barred.

The Court of Appeal agreed that the claim was discoverable when the appellant received an arborist report detailing the respondent's substandard work.

Because the action was commenced more than two years after the receipt of the report, the appeal was dismissed.

The applicant, who self-identifies as black and a Seventh-Day Adventist, alleged that his race, colour, and creed were factors in the termination of his employment.

The respondent employer maintained that the termination was a layoff due to a downturn in business, and the applicant was selected because he had the least seniority among senior technicians.

The Tribunal found the respondent's manager to be a credible witness and accepted that the layoff was for financial reasons based on seniority.

The Tribunal concluded that the applicant failed to establish on a balance of probabilities that his race, colour, or religion played a part in the termination decision.

The application was dismissed.