Associate Judge Charles G. T. Wiebe

The defendant employee, accused of defrauding the plaintiff employer of over $470,000, brought a motion for further and better documentary production.

The defendant counterclaimed for unpaid loans and wrongful dismissal, alleging she was directed to make cash payments to creditors and others.

The Master granted the motion, ordering broad production of cheques, invoices, bank statements, and financial records, finding that the employer's unorthodox accounting practices and the serious nature of the fraud allegations necessitated extensive documentary discovery to allow forensic reconstruction of the financial history.

The defendant owner in a construction lien action brought a motion for leave under section 56(1) of the Construction Lien Act to join an officer of the plaintiff contractor as a third party.

The proposed third party claim sought contribution and indemnity for allegedly false statutory declarations sworn by the officer.

The court dismissed the motion, finding that the proposed claims were not true claims for contribution and indemnity related to the plaintiff's lien claim, but rather separate claims for damages that resembled trust claims, which are prohibited from being joined with lien claims under section 50(2) of the Act.

In a trial of an issue within a construction lien reference, the court determined the owner's notice holdback liability under s. 24 of the Construction Lien Act.

The subcontractor argued that ten emails constituted written notices of lien.

The court held that a valid written notice of lien requires a clear warning that the dispute has reached the lien stage and that the flow of funds must be interrupted.

Only one email met this requirement.

The court further held that the owner's notice holdback liability was reduced by subsequent payments made by the contractor to the subcontractor, resulting in a final notice holdback liability of $215,054.80.

This judgment addresses the lienability of equipment repair services and materials supplied by Toromont Industries Ltd. and Val Rita Tire Sales Ltd. to 450477 Ontario Limited o/a Chartrand Equipment, a general contractor for a remote gold mine project.

BDO Canada Limited, as Chartrand's receiver, disputed these construction lien claims.

The court applied a "functional nexus" test, focusing on whether the services and materials were necessary for the project's completion and benefited all contractors, rather than a strict "consumption" theory or geographical location.

Given the extreme wear and tear on equipment and the extraordinary commitment required from the suppliers due to the project's nature and remoteness, the court found both Toromont and Val Rita's claims entirely lienable.

The court also clarified that the existence of rights under the Repair and Storage Liens Act (RSLA) does not automatically preclude claims under the Construction Lien Act (CLA) unless an election to enforce RSLA rights has been proven, which the receiver failed to do.

The plaintiff, Gemcorp International Limited, brought a motion to set aside a Registrar's dismissal order for delay, pursuant to Rule 48.14.

The defendant, Sun Life Assurance Company of Canada, opposed the motion.

The court applied the four-part test from Reid v. Dow Corning Corp., contextualized by Scani v. Prochnicki, requiring an explanation for delay, inadvertence in missing deadlines, promptness in bringing the motion, and no prejudice to the defendant.

The court found the plaintiff failed to provide a credible explanation for the litigation delay, failed to establish inadvertence, and failed to rebut the presumption of prejudice to the defendant, particularly concerning faded memories and the need for broader medical evidence.

Consequently, the motion to set aside the dismissal order was dismissed, and costs were awarded to the defendant.

TIF Mechanical Limited claimed a construction lien of $471,312.17 against the Owners for renovation work.

The Owners denied the claim, alleging overpayment, incomplete and unauthorized work, and counterclaimed for $500,000.

The court found that the parties had a series of individual contracts, initially fixed-price, then primarily verbal time-and-material agreements, rather than an overarching fixed-price general contract as alleged by the Owners.

The court largely accepted TIF's invoices as reflecting the agreed-upon price and found the Owners' credibility lacking regarding a budget limit.

While some deficiencies were found, the Owners' counterclaim for unauthorized work, zoning variance costs, completion costs, general damages, bad faith, and loss of opportunity was dismissed.

TIF was awarded $377,277.82 plus prejudgment interest.

The defendants, Alfonso and Helen Fulchini, moved to discharge a Certificate of Pending Litigation (CPL) registered on Helen's property, Elizabeth Grove, which was obtained ex parte by the Bank of Nova Scotia (BNS).

The BNS's claim to an interest in the land was based on an alleged fraudulent conveyance by Alfonso to Helen of proceeds from the sale of another property, Easy Street, which were then traced into Elizabeth Grove.

The court found that the BNS had a reasonable claim to an interest in Elizabeth Grove, citing several "badges of fraud" in the transfer of funds between the spouses and the lack of credible evidence of consideration.

The court also rejected the defendants' arguments that damages were an adequate alternative remedy and that the CPL should be discharged due to non-disclosure by the BNS at the ex parte motion.

The motion to discharge the CPL was dismissed, though the court allowed for the CPL to be discharged if the defendants posted cash security.

The defendants brought a motion to discharge a certificate of pending litigation (CPL) registered by the plaintiff buyer on a commercial property.

The plaintiff had failed to close the $75 million transaction on multiple extended closing dates due to lack of financing.

The plaintiff argued the 'time is of the essence' clause had been waived by the defendants' conduct.

The court found no triable issue that the clause was waived, as each extension reaffirmed it and the defendants' subsequent communications were settlement offers, not waivers.

The court discharged the CPL, declared the plaintiff had no interest in the property, and ordered the deposits forfeited.

The defendant brought a motion to set aside a default judgment and to declare the plaintiff's construction lien expired.

The court refused to set aside the default judgment, finding that although service of the statement of claim was technically defective, it came to the defendant's attention in a timely manner.

Furthermore, the defendant failed to provide a plausible excuse for the default or credible evidence of an arguable defence on the merits.

However, the court granted the motion to declare the construction lien expired, as the plaintiff had failed to set the action down for trial within the two-year period required by section 37 of the Construction Lien Act, and a registrar's default judgment does not satisfy this requirement.

The defendants brought a motion for security for costs against the plaintiff, who resides in India.

The plaintiff argued that he was impecunious and had a meritorious claim arising from a motor vehicle accident.

The court found that the plaintiff failed to provide robust financial disclosure to prove impecuniosity.

Furthermore, the court held that the plaintiff did not demonstrate a good chance of success due to a serious limitation period defence, as the action was commenced over five years after the accident.

The motion was granted, and the plaintiff was ordered to post $15,000 in security for costs.

The plaintiff subcontractor, S&K Construction, registered a construction lien against the owner, NAMF, and the general contractor, Hussain, for unpaid work on a gym renovation project.

The central dispute involved the installation of a defective epoxy gym floor.

The court found that both the general contractor and the subcontractor breached their respective contracts by failing to deliver a floor that was smooth enough for gym use.

As a result, the subcontractor's lien claim for the floor work was dismissed.

The owner's claim for the full cost of a replacement pulastic floor was denied due to betterment, but the owner was awarded the cost of removing the defective epoxy.

The subcontractor was awarded a reduced lien amount for authorized non-floor work, and the general contractor was awarded payment for an HVAC unit.

The defendant, represented by the Minister of Finance under the Motor Vehicle Accident Claims Act, brought a motion to strike a jury notice served by the plaintiff seven months after the close of pleadings.

The defendant argued the notice should be struck due to the lack of a leave motion, unconscionable delay, prejudice, and because the action was in 'pith and substance' against the Superintendent, which requires a non-jury trial.

The court dismissed the motion, finding no unconscionable delay or prejudice, and noting that since the Superintendent was not joined as a party, the statutory prohibition against a jury trial did not apply.

The plaintiff, Unimac, brought a motion to vary previous orders requiring it to post security for costs in favour of the defendant, Metrolinx.

Unimac argued the orders were based on false and misleading evidence regarding the location of a related action, and that new evidence undermined the credibility of a key affidavit.

The Master dismissed the motion, finding that the location of the related action was not material to the original decision and that Unimac could have discovered the true location with due diligence.

The Master also found that the new evidence would not have had an important influence on the original decision.

The defendant brought a motion to compel answers to numerous questions refused or taken under advisement during the discovery of the plaintiff’s representative.

The action involved a dispute over whether a transaction transferring investment advisors from one dealer to another constituted a share sale or an asset sale, and whether the defendant had resigned or was constructively dismissed.

The court considered the scope of relevance at discovery, the role of surrounding circumstances in contractual interpretation, and the evidentiary burden required to sustain claims of privilege.

Most questions relating to the due diligence process, the structure and purpose of the transaction vehicle, and financial information relevant to alleged constructive dismissal and damages were ordered answered.

Several questions were refused where they were speculative, irrelevant, or too remote from the issues in dispute.

A contractor commenced a construction lien action seeking payment of $20,000 under a fixed‑price kitchen renovation contract that provided for payment upon completion.

The homeowners denied the claim and advanced a counterclaim for repair costs and return of a deposit.

The court held that the contractor had not completed or substantially completed the work and that several deficiencies—including an uneven floor, improperly cut countertop, damaged hardwood floor, and backsplash design issue—were significant.

The court found that the contractor abandoned and repudiated the contract by refusing to undertake necessary corrective work and by demanding payment when none was due, disentitling it from recovery including quantum meruit.

The homeowners’ counterclaim also failed because the alleged repair costs had not yet been incurred and the deposit claim was withdrawn.

The plaintiff, as trustee of a living trust, brought an action claiming a constructive trust over a Toronto condominium owned by the defendant, and obtained an ex parte certificate of pending litigation (CPL).

The plaintiff moved to amend the claim to add the deceased's estate as a plaintiff, while the defendant moved to discharge the CPL for material non-disclosure and for security for costs.

The court allowed the amendment to add the estate, but discharged the CPL, finding the plaintiff was grossly reckless in failing to disclose the deceased's declaration of trust and will, which did not list the property.

The court also ordered the foreign plaintiff to post security for costs.

The defendant brought a motion seeking security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure, arguing there was good reason to believe the plaintiff lacked sufficient assets in Ontario to satisfy a potential costs award.

The court reviewed evidence including alleged asset transfers, a bonding company's security enforcement, delayed corporate filings, lien claims, and non-payment of previous costs orders.

The court held that the moving party failed to meet the required evidentiary threshold showing indicia of insolvency or corporate instability.

Much of the evidence was speculative, hearsay, or insufficient to establish asset insufficiency.

The motion for security for costs was dismissed.

The moving defendants sought leave under s. 215 of the Bankruptcy and Insolvency Act to continue a crossclaim against the trustee in bankruptcy of a bankrupt tenant arising from environmental damage caused by a leaking tank at leased premises.

The court considered whether the proposed crossclaim disclosed a viable claim of gross negligence, given statutory protections limiting a trustee’s liability for post‑appointment environmental damage.

The court held that the evidentiary record disclosed a sufficient factual basis to support a potential claim that the trustee, while retaining possession of the premises and having prior knowledge of environmental risks and inadequate site security, may have failed to take reasonable preventative steps.

The court further held that the discontinuance of the plaintiff’s claim against the trustee did not bar the crossclaim for contribution and indemnity under the Negligence Act.

Leave was granted nunc pro tunc and the crossclaim was declared not dismissed under Rule 23.03(1.1).

Two subcontractors registered construction liens for unpaid work on a residential construction project.

The court considered whether the liens were preserved within the 45‑day statutory period under the Construction Lien Act based on the date of last supply of services or materials.

After reviewing the evidence, the court found that neither subcontractor proved that qualifying work occurred within the preservation period, and both liens had therefore expired.

The subcontractors also advanced alternative claims for restitutionary quantum meruit against the owners.

The court rejected those claims, holding that unjust enrichment remedies against owners would undermine the statutory construction lien regime where contractual relationships and lien remedies already governed the parties’ rights.

Following a successful motion for security for costs, the moving party sought partial indemnity costs exceeding $51,000.

The responding party argued that no costs should be awarded or that costs should be reserved pending judicial review of the motion decision.

The court assessed the relevant Rule 57.01 factors including partial success on the motion, the complexity of the issues, the parties’ conduct, and the reasonableness of the time claimed in the costs outline.

While the moving party was the successful party, some claimed time was excessive and the security order represented only about 65% of what had been sought.

The court fixed partial indemnity costs at $25,000 inclusive of tax.