Associate Judge Charles G. T. Wiebe

The moving party sought an order transferring an action from Newmarket to Toronto and assigning it to be heard with related proceedings arising from a large construction project.

The responding party challenged the jurisdiction of a master to order a change of venue and opposed the transfer.

The court held that Rule 13.1.02 of the Rules of Civil Procedure confers jurisdiction on a master to order a venue transfer, distinguishing authority concerning consolidation and stays under s. 107 of the Courts of Justice Act.

Applying the Rule 13.1.02(2)(b) factors, the court found that the events, subject matter, and related litigation were centred in Toronto and that transferring the matter would promote efficiency and avoid inconsistent findings.

The motion for adjournment was denied and the venue transfer ordered, while requests to have the action tried with other proceedings or referred to the master for trial were adjourned to be determined by a judge.

Following a motion concerning the vacating of construction liens upon posting reduced security, the moving parties sought partial indemnity costs of approximately $7,700.

The court considered the circumstances of the motion, including short service of the original motion, the fact that the ultimate relief ordered differed from the relief originally sought, and the novelty of the reduced-security structure proposed under the Construction Lien Act.

The court found the responding lien claimants’ opposition to be reasonable and noted that alternative statutory mechanisms were available to the moving parties without requiring the motion.

Given the mixed success and the conduct of the moving parties, the court declined to award costs.

The defendants brought a motion seeking leave and an order requiring a corporate plaintiff to post security for costs in a construction lien action.

Although the court accepted that the defendants had established grounds under Rule 56.01(1)(d) of the Rules of Civil Procedure and that the plaintiff had not proven impecuniosity with sufficient evidence, the court exercised its discretion to refuse security for costs.

The motion had been brought after significant unexplained delay, the defendants had not complied with earlier court-ordered undertakings, and their counterclaims arose from the same facts and were substantially larger than the plaintiff’s claim.

These factors militated against granting security for costs.

The motion was therefore dismissed.

Mortgagees brought a motion under ss. 44(2) and 78 of the Construction Lien Act seeking to vacate five construction liens from title to condominium units by posting alternative security.

The development consisted of 26 commercial condominium units, most of which had already been sold, while five units remained unsold.

Lien claimants argued that security equal to nearly the full amount of the liens should be posted in cash from sale proceeds.

The court held that the mortgagees’ proposal—posting partial cash security while leaving the liens on title to the remaining unsold units—provided more than adequate combined land and cash security and better preserved potential equity by reducing mortgage debt and accumulating interest.

The court ordered the liens vacated from the sold units upon posting security while remaining on the unsold units pending further order.

The defendants moved for leave under Rule 25.01(5) of the Rules of Civil Procedure to deliver a rejoinder responding to the plaintiffs’ Reply.

The court considered the restrictive test governing when pleadings may continue beyond a reply, emphasizing that leave should only be granted where the reply introduces new and important matters that could not reasonably have been anticipated in the statement of defence.

The motion arose in complex litigation concerning family disputes over corporate, trust, and estate arrangements involving a real estate business and charitable structures.

The court concluded that several allegations raised in the reply—including claims regarding mistaken transfers of investment assets, fiduciary breaches, property management arrangements, and trust income expectations—introduced new factual bases and potential grounds of liability.

Leave was granted to deliver the proposed rejoinder in full.

Following a motion to set aside an administrative dismissal under Rule 48.14 of the Rules of Civil Procedure, the court addressed the issue of costs.

Although the plaintiff was successful in having the administrative dismissal set aside, the court found that the plaintiff’s unexplained delay, failure to bring the motion promptly, and deficiencies in the evidentiary record significantly complicated the proceeding.

The court held that the defendant was justified in opposing the motion and that the plaintiff’s conduct unnecessarily lengthened and complicated the litigation.

Applying the factors under Rule 57, the court concluded that the defendant should receive costs despite not succeeding on the motion itself.

A reduced partial indemnity costs award was granted to reflect some excess in the claimed time and the plaintiff’s ultimate success on the motion.

The moving party sought an order declaring that its construction lien was validly sheltering under other perfected liens pursuant to s. 36(4) of the Construction Lien Act, and also sought enforcement of an alleged settlement.

The responding landowner argued that insufficient evidence established that the work performed by the sheltering lien claimants related to the “same improvement.” The court held that the moving party’s evidence, including an affidavit stating that it supervised contractors working on the same renovation and construction project, established the required nexus between the work.

The lien was therefore found to be validly sheltered.

However, the court declined to enforce the alleged settlement due to insufficient documentary evidence of agreed settlement terms.

The defendant brought a motion to set aside a default judgment obtained by the plaintiff for the repayment of allegedly improper invoices for engineering services.

The court found the defendant's explanations for failing to defend the action and for the five-month delay in bringing the motion to be unacceptable and lacking credibility.

However, noting that the defendant had a weak but arguable defence on the merits, the court exercised its discretion to allow the default judgment to be set aside, but only on the strict condition that the defendant pay the full judgment amount plus $10,000 as security for costs into court within 30 days.

The defendant moved to set aside a noting in default and default judgment in a construction lien action.

The court found that the defendant failed to provide an acceptable explanation for the default, as counsel deliberately chose not to file a defence despite clear warnings from the plaintiff.

However, applying the test for setting aside default judgments, the court weighed the prejudice to both parties.

Finding that the plaintiff's prejudice was compensable by costs, while the defendant would suffer considerable prejudice by being unable to present a viable defence and having its bank accounts frozen, the court granted the motion and set aside the default judgment.