Associate Judge Charles G. T. Wiebe

This is a costs decision following a trial where the plaintiff, Quality General Contractor’s Inc., was unsuccessful in establishing a contract with the owners and its construction lien was found to have expired.

The court awarded substantial indemnity costs of $54,000 to the owners, Judy Wu and Ivan Zee Hin Chan.

The award was based on the owners' successful outcome, their reasonable offers to settle that were significantly more favourable than the trial result, and the plaintiff's abusive conduct, including fabrication of invoices and diary entries and failure to produce key documents, which complicated the proceedings.

The court also considered the proportionality of costs, noting the importance and complexity of the case to the owners due to the plaintiff's groundless claim of a collateral contract leading to potential double liability.

The plaintiff tenant brought an action for breach of contract and a construction lien against the defendant landlord and property manager for renovations completed in his rental unit.

The plaintiff alleged an oral agreement with the deceased principal of the property manager, whereby the plaintiff would renovate the unit and be paid for labour and materials upon the sale of the building.

The defendants denied the existence of the contract.

The court found the plaintiff's evidence credible and corroborated by circumstantial evidence, establishing an enforceable oral contract.

The court awarded the plaintiff $30,142 in damages for breach of contract, to be paid from funds posted in court, and recognized a valid lien for $26,859.15.

The plaintiff brought a motion for a status hearing and a timetable order to set the action down for trial.

The defendants opposed, seeking dismissal for delay.

The underlying action was a subrogated claim by TD Insurance for foundation damage to the plaintiff's home, allegedly caused by construction at the Chinese embassy.

The court dismissed the plaintiff's motion and the action for delay, finding that the plaintiff failed to provide an acceptable explanation for the delay and that the defendants would suffer non-compensable prejudice due to lack of transparency, failure to obtain a confidentiality order, inappropriate venue, and remediation work done without notice to the defendants.

Costs were awarded to the defendants on a substantial indemnity basis for PCL and fixed amounts for the other parties.

The plaintiff contractor brought an action to enforce a construction lien of $14,091.10 for the renovation of a roastery café.

The defendant owner counterclaimed for $386,047.87, alleging overcharging, delay, deficiencies, and flood damage.

The court found the contract was a cost-plus contract, not a fixed-price contract.

The contractor failed to meet its heavy evidentiary burden to prove its actual costs, resulting in an overpayment finding of $182,825.55 in favour of the owner.

The court dismissed the owner's claims for delay and deficiencies but found the contractor partially liable for flood damage in the amount of $1,300.

The contractor's lien was discharged, its action dismissed, and the owner was awarded $184,125.55 on its counterclaim.

The defendants, Guangcheng Zhu and Guru Constrarchit Ltd., brought a motion to set aside a default judgment.

The court applied the five-factor test for setting aside default judgments, finding that while the motion was brought promptly and there was an arguable defense for conversion, breach of trust, and punitive damages, the defendants failed to provide a plausible explanation for their default, having made a conscious decision not to participate in the proceedings until their bank accounts were frozen.

The court partially granted the motion, setting aside only the portion of the default judgment related to conversion, breach of trust, and punitive damages ($99,628.58), while upholding the remainder of the judgment, including damages for breach of contract and costs.

The Police Defendants brought a motion for a status hearing under Rule 48.14(5), (6), and (7) seeking an order to dismiss the action for delay.

The plaintiffs provided explanations for a four-year delay, primarily citing the incarceration of Krystle Oag, which made mandatory mediation impossible for a significant period.

The court found the incarceration to be an acceptable explanation for three of the four years of delay.

Despite a presumption of prejudice, the plaintiffs successfully rebutted it by demonstrating that all relevant documents were produced, key witness memories were captured in discovery transcripts, and all key witnesses remained available for trial.

The motion to dismiss for delay was dismissed, and no costs were awarded due to the poor quality of the plaintiffs' evidence explaining the delay.

The court also ordered a timetable for remaining interlocutory steps, including noting a defendant in default, mandatory mediation, and setting the action down for trial.

This judgment arises from a summary trial converted from a motion brought by the Owners (defendants) seeking to declare the plaintiff's (Quality's) claim for lien expired and to dismiss the action against them.

The court addressed three issues: the applicable Construction Act, the existence and nature of a contract between the Owners and Quality, and Quality's last date of supply.

The court found that the old Construction Act applied.

It concluded that no oral guarantee agreement existed between Quality and the Owners, and even if it did, it was unenforceable under the Statute of Frauds.

Furthermore, the court found that Quality failed to prove its claim for lien was preserved in time, as its last lienable supply of services and materials occurred before the 45-day preservation period.

The judge made strong adverse credibility findings against Quality's witnesses and found the Owners' witness credible.

The defendant, Maria Rita Ferreira, brought a motion to discharge a certificate of pending litigation (CPL) and dismiss the action against her.

The CPL was granted to the plaintiffs without notice.

Maria alleged material misrepresentation by the plaintiffs regarding two mortgages and unreasonable delay in prosecuting the proceeding.

The court dismissed the motion, finding no material non-disclosure or misrepresentation, and that while there was delay, it was excusable due to counsel's inadvertence and related litigation, and did not cause substantial prejudice to a fair trial.

The equities favored the plaintiffs.

No costs were awarded.

Lugano View Limited (owner) brought a motion to lift a consent stay order and dismiss a lien action by Bank-Strox Renovation Inc. (general contractor) for delay, under section 47 of the old Construction Act.

The parties had agreed to arbitrate the dispute after the lien action commenced, leading to a stay of the action, but the arbitration did not proceed for several years.

The court dismissed Lugano's motion, finding that in an arbitration agreed upon after a civil action, both parties bear responsibility for advancing the arbitration, especially the defendant who has not pleaded.

Lugano failed to explain its own inaction, including not seeking court intervention to appoint an arbitrator under section 10 of the Arbitration Act.

The court found no evidence of actual prejudice to Lugano or that a fair hearing could not take place, despite the delay.

The court also criticized Bank-Strox's conduct but maintained its decision.

The defendants brought motions under section 86(1)(b)(i) of the old Construction Act seeking costs against the plaintiff's former law firm, arguing the firm participated in preserving and perfecting a baseless construction lien.

The court held that liability under this section requires subjective actual knowledge, recklessness, or willful blindness regarding the baselessness of the lien, rather than mere negligence.

Finding no evidence that the law firm possessed such knowledge or acted with willful blindness at the time of preservation and perfection, the court dismissed the motions.

The defendants brought a motion seeking an order requiring the plaintiff to post $150,000 as security for costs under Rule 56.01(1)(e).

The plaintiff's action claimed damages for an improvident sale of a mortgaged property and economic interference.

The court dismissed the motion, finding the defendants failed to meet their onus of proving the action was frivolous and vexatious, as there was evidence suggesting the mortgagee may have failed to take reasonable precautions to obtain true market value.

The plaintiff was awarded $15,000 in partial indemnity costs.

BIE Health Products brought a motion seeking production of expert instructions, communications between the Attorney General (AG) and its experts (Dr. Barbara Menzies and Errol Soriano), expert notes and draft reports, an updated AG List of Documents, and the unredacted version of an inadvertently disclosed document.

The court dismissed all aspects of BIE's motion, finding that expert instructions were adequately disclosed, no reasonable grounds existed to suspect undue interference with expert independence to warrant disclosure of communications or drafts, and the inadvertently disclosed document was subject to solicitor-client privilege.

Costs were awarded to the AG.

The defendants brought a motion for security for costs against the plaintiff, Unionville Education Inc. (UEI), seeking $41,443.46.

The court granted the motion in part, ordering UEI to post $20,000 in security for costs, payable in tranches.

The court found that UEI had insufficient assets in Ontario to pay costs, satisfying Rule 56.01(1)(d).

The requested amount was reduced because the defendants had asserted a substantial counterclaim and had engaged in unreasonable conduct, including failing to comply with discovery undertakings and serving motion materials late.

The court also set aside a noting in default, granted leave for the defendants to serve a statement of defence and counterclaim, and ordered a further discovery for one of the plaintiff's shareholders.

Costs of the motion were ordered to be absorbed by each party due to the defendants' procedural misconduct.

This endorsement addresses two motions: one by Kamali Design Home Builder Inc. ("Kamali") to declare UCY Construction & Project Management Inc.'s ("UCY") construction lien expired under sections 37 and 46 of the Construction Act, and a cross-motion by UCY to validate service of its statement of claim and extend the time for service.

The court granted Kamali's motion, declaring the UCY lien expired and dismissing the lien action, as UCY conceded the action had not been set down for trial within the statutory period.

UCY's motion to validate service was partially granted, validating service on the owner and Kamali, but not on the mortgagees, despite UCY's failure to explain the delay in service, due to actual notice and lack of prejudice.

Costs were awarded to Kamali for their successful motion, while no costs were ordered for UCY's service validation motion.

The plaintiff, Namena Corp., brought a motion seeking to strike the statement of defence and counterclaim of Mr. Sivarajah for failing to answer discovery questions, or alternatively, to compel reattendance at discovery and for Rule 30.10 relief for third-party production.

The court denied the motion to strike the pleadings, finding that the defendants' conduct did not warrant such a severe remedy, noting that undertakings had been complied with and some refusals were reasonably defended.

The court ordered Mr. Sivarajah to reattend discovery to answer specific questions regarding bank statements and the identity of a company that performed NPN registrations, but not to recreate master manufacturing documents or disclose tax returns.

The Rule 30.10 motion for third-party production was granted for Health Canada, Omega, and Reva, with a conditional order for Quality.

Costs were awarded to the plaintiff, reflecting divided success and delays caused by both parties.

Following the dismissal of the plaintiff's construction lien claim and the granting of the defendants' counterclaim, the court determined costs and interest.

The court awarded the defendants substantial indemnity costs of $225,000, finding that the plaintiff's claim was without foundation and its conduct abusive.

The court pierced the corporate veil to hold the plaintiff's principal personally liable for the costs, as he dominated the corporation and used it for extortionary purposes.

Prejudgment interest was awarded at a rate of 2% per annum.

The plaintiff brought a motion to amend the statement of claim to replace a 'Jane/John Doe' defendant with a named individual, Hadi Bahiraei, in an action concerning a fatal drug overdose at a mental health facility.

The defendants opposed the amendment, arguing there was an unexplained and inordinate delay of over two years in bringing the motion after the plaintiff learned the individual's identity.

The court granted the motion, finding that while the delay was significant and poorly explained, the amendment would not cause non-compensable prejudice to the defendants.

The plaintiff was ordered to pay $1,500 in costs thrown away.

This decision addresses two motions regarding discovery undertakings and refusals in a wrongful dismissal action.

Marwan Dalle sought orders for Cisco's representative to provide better answers and reattend discovery, while Cisco sought similar orders against Dalle.

The court applied principles of relevance and proportionality, finding that constructive dismissal was sufficiently pleaded by Dalle.

Most of Dalle's requests for Cisco's representative were granted, particularly concerning employment offer terms, commission entitlements, inducement representations, and the veracity of the corporate restructuring reason for termination.

Cisco's requests for Dalle were largely found to have been addressed by Dalle's subsequent disclosures.

Both parties' representatives were ordered to reattend discovery for follow-up questions, with costs of reattendance reserved to the trial judge.

Dalle was awarded net partial indemnity costs of $7,000 against Cisco due to Cisco's lack of effort in reducing the issues in dispute.

The plaintiff contractor brought an action to perfect a construction lien for unpaid renovation and flood repair work.

The court found that while there was no enforceable contract due to a lack of agreement on scope and price, the plaintiff was entitled to recovery on a contractual quantum meruit basis because the defendant requested and accepted the work.

The court valued the work at $56,554.67 based on the plaintiff's actual costs and dismissed the defendant's claims of deficient work.

The plaintiff was granted damages and a valid lien in that amount.

The defendant, Farm Mutual Reinsurance Plan Inc. (FMRP), brought a motion for security for costs against the plaintiff, 2496300 Ontario Inc. (249), under Rule 56.01(1)(d) due to 249's insufficient assets. 249 did not dispute its lack of assets but argued against the order due to FMRP's unreasonable delay in bringing the motion, FMRP's alleged causation of 249's financial state, and 249's strong chance of success.

The court found FMRP's delay unreasonable, limiting the security to future costs.

The court also found that 249 failed to establish a "good chance of success" in overturning its independent contractor agreement.

The motion was granted in part, ordering 249 to post $50,000 for FMRP's future partial indemnity costs and to pay $15,000 in partial indemnity costs for the motion itself.