Associate Judge Charles G. T. Wiebe

The plaintiff brought a motion to compel the Attorney General of Canada to produce remaining documents from Schedule B of its supplementary affidavit of documents, challenging the AG's claims of solicitor-client and litigation privilege.

The plaintiff also sought an order that the AG's representative reattend discovery at his own expense.

The court reviewed the descriptions of the documents, including those claimed as privileged due to 'family coding' (attachments to privileged documents), and inspected several documents directly.

The court found the claims of privilege were valid and dismissed the motion for production.

The court also declined to order the representative to pay for his reattendance, as there was no finding of misconduct.

Costs of $5,000 were awarded to the AG.

The plaintiff brought a motion to set aside a registrar's dismissal order for delay in prosecuting the action.

The court considered factors including the length and explanation of litigation delay, inadvertence in missing the set-down deadline, promptness of bringing the motion, and prejudice to the defendants.

While the plaintiff failed to adequately explain the litigation delay and did not bring the motion promptly, the court found no significant prejudice to the defendants.

Emphasizing that prejudice is a key consideration and that cases should be determined on their merits, especially when delay results from counsel error, the court granted the motion and set aside the dismissal order.

No costs were awarded.

The plaintiff subcontractor brought an unopposed motion for leave to amend its statement of claim to add a corporate party and its principal as defendants, and to add allegations of breach of statutory trust under the Construction Act.

The court expressed concerns that the proposed amendments failed to plead a contractual relationship with the proposed defendants, which is required for a contractor's trust claim.

The court also noted that O. Reg. 302/18, section 3(2) likely prohibits the joinder of trust claims with lien claims.

Following these comments, the plaintiff withdrew the motion.

The plaintiff contractor brought a motion to extend the time for service of its statement of claim in a construction lien action.

The defendant tenant brought a cross-motion to declare the lien expired.

The plaintiff had delayed service because the tenant acknowledged the debt and requested an indulgence to secure financing during the COVID-19 pandemic.

The court found the plaintiff's explanation compelling and noted the tenant's conduct rose to the level of issue estoppel.

The court granted the extension, dismissed the cross-motion as moot, and declined to award costs to the tenant.

The defendants brought a motion to dismiss the plaintiffs' action for delay under Rules 48.14 and 24.01 of the Rules of Civil Procedure.

The plaintiffs brought a cross-motion to extend the deadline to set the action down for trial.

The court found that the plaintiffs had an acceptable explanation for the delay, which included the time required to comply with undertakings, retain experts, and the impact of the COVID-19 pandemic.

The court also found that the defendants failed to establish non-compensable prejudice.

The defendants' motion was dismissed, and the plaintiffs' cross-motion was granted, establishing a timetable for mandatory mediation and setting the action down for trial.

The plaintiff sought costs following a successful motion regarding 166 undertakings and refusals from the defendants' discoveries.

The plaintiff claimed $228,395.58 on a substantial indemnity basis, citing the defendants' conduct, including delayed disclosure and excessive refusals.

The court declined to award substantial indemnity costs, finding the conduct did not rise to the level of scandalous or reprehensible behavior.

Applying the principle of what is fair and reasonable for the unsuccessful party to pay, the court fixed partial indemnity costs at $100,000, payable jointly by the TTC Defendants.

The plaintiff brought a motion to extend the time for service of a statement of claim and to increase the prayer for relief to $10,000,000.

The plaintiff was uninsured when his vehicle was struck by the defendants in a private parking lot.

Relying on mistaken legal advice that uninsured motorists cannot sue for torts in private lots, the plaintiff's former counsel issued but did not serve the claim.

Years later, new counsel discovered the unserved claim and served it.

The court granted the extension, finding no actual prejudice to the defendants because their insurer had extensively investigated the plaintiff's injuries through his accident benefits claim, and the plaintiff adequately explained the delay as reliance on faulty legal advice.

Following a trial where the plaintiff was largely successful in its construction lien claim and successfully defended against the defendants' counterclaim, the court determined the appropriate costs award.

The plaintiff sought $46,326.42 based on partial indemnity costs up to the date of a reasonable offer to settle, and substantial indemnity costs thereafter.

The court found the defendants' failure to accept the plaintiff's reasonable offers and their unreasonable conduct during litigation justified the costs claimed.

The plaintiff was awarded $44,000 in costs, slightly reduced to reflect partial lack of success on the main claim, along with prejudgment and post-judgment interest.

The plaintiff contractor brought a motion to amend its statement of claim to correct a misnomer, add a claim for additional construction costs, and plead misrepresentation against one of the defendants regarding his status as an owner versus a builder under the New Home Warranties Plan Act.

The defendants opposed the amendments, arguing they were statute-barred and improperly joined to a lien action.

The court granted the motion in its entirety, finding that the misrepresentation claim was not clearly statute-barred as it was discovered recently upon disclosure of a project management agreement.

The court also found that the misrepresentation claim had an essential connection to the lien claim, permitting joinder.

Finally, the court declined to order security for costs or costs thrown away against the plaintiff, noting the defendants' delay in producing the relevant agreement.

Following the successful motion by Suncity Development Ltd. to declare Alumtech Bond Inc.'s construction lien expired and dismiss the action, the court determined the issue of costs.

The court found that Alumtech's action was without merit based on its own pleadings and that it acted unreasonably by proceeding despite being notified of the expired lien.

Suncity was awarded $40,000 in substantial indemnity costs.

The plaintiff brought a motion to resolve numerous undertakings and refusals from the discoveries of the defendants, and to seek leave to extend the time limits for further discoveries.

The court ruled on dozens of specific refusals and undertakings, ordering the defendants to answer the majority of them.

Applying the factors under Rule 31.05.1(2), the court granted the plaintiff an additional 26 hours to discover the defendants, noting the complexity of the case, the financial imbalance between the parties, and the defendants' conduct during initial discoveries.

The court also ordered three of the defendants to reattend at their own expense pursuant to Rule 34.15(1)(a) due to the large volume of improper refusals.

Following a trial where the plaintiff succeeded in its construction lien and damages claims, the court determined the costs and interest payable.

The court found the defendant's settlement efforts unreasonable, noting she rejected a settlement conference recommendation and a reasonable Rule 49 offer from the plaintiff.

Applying the principles of proportionality and the factors under Rule 57.01, the court awarded the plaintiff costs of $135,000, representing a reduction from the $186,044.09 claimed, along with prejudgment and post-judgment interest.

The plaintiff, a subcontractor providing swing stage labour, brought a construction lien and breach of contract claim against the general contractor and owner for unpaid invoices totaling $36,761.73.

The defendants counterclaimed for deficiency correction costs and alleged overbilling, including disputed travel time.

The court found that the defendants fundamentally breached the oral contract by refusing payment based on groundless deficiency claims and terminating the contract without cause.

The court held that travel time was compensable under the agreement and awarded the plaintiff $35,643.03, dismissing the defendants' counterclaim.

The moving party, a woodworking contractor, brought a motion under Rules 45.01 and 45.02 for an interim order preserving the proceeds of any sale of the responding party's residential condominium.

The moving party had previously proven its construction lien and was awarded costs and interest in a Master's report, which the responding party was moving to oppose.

The court found that Rule 45.01(1) applied because the report created a connection between the awarded costs and interest and the proceeds of the condominium's sale, and there was evidence the responding party was attempting to sell the unit without notifying his counsel.

The court ordered that $220,000 from any sale proceeds be paid into court pending the final determination of the motion opposing confirmation of the report.

The plaintiff contractor sought leave under section 67(2) of the Construction Act to bring a motion for partial summary judgment for allegedly undisputed certified draws totaling up to $1,256,400.

The defendant landlords opposed, citing a supplementary condition in the contract that required delaying dispute resolution pending the outcome of a concurrent dispute with the federal government tenant.

The court granted leave, finding the motion was necessary to clarify the contractual condition that could otherwise halt the entire proceeding, and that resolving the issue of the undisputed monies would expedite the resolution of the broader dispute.

The moving party, Suncity, brought a motion to declare the responding party's construction lien expired for failure to perfect within the 90-day period under the old Construction Act.

The responding party argued the new Construction Act applied, which would extend the perfection period to 150 days, claiming Suncity was an 'owner' rather than a 'contractor'.

The court relied on clear admissions in the responding party's statement of claim that Suncity was the general contractor and Epic was the sole owner.

Consequently, the old Construction Act applied, the lien was declared expired, and the action was dismissed.

The plaintiff in a construction lien action brought a motion for leave under s. 67(2) of the Construction Act to amend his pleadings, discovery undertaking answers, and Scott Schedules to include claims for two additional extras and correct accounting errors.

The defendants opposed, arguing the amendments withdrew admissions and introduced statute-barred claims.

The Master found the original pleadings were not admissions under Rule 51.05 and the amendments merely clarified existing claims rather than introducing new causes of action.

Finding no non-compensable prejudice to the defendants, the Master granted leave for all requested amendments.

The defendants brought a motion to dismiss a construction lien action for delay.

The plaintiff contractor registered a lien in 2012 but took no steps in the proceeding for over seven years after setting it down for trial.

The court found the delay to be inordinate and inexcusable, noting the summary nature of construction lien actions.

The court also found the delay caused actual prejudice to the defendants, as their key witnesses' memories had faded and records were lost.

The motion was granted, the action was dismissed, and the lien was discharged.

The plaintiff brought a motion for default judgment against the MCI and Zebu Defendants for breach of contract regarding unpaid construction invoices.

The defendants had been noted in default and were deemed to admit the allegations in the statement of claim under s. 54(4) of the Construction Act.

The court found the evidence corroborated the claim and granted default judgment in the amount of $116,382.46.

Following precedent, the court determined it must issue a report rather than a judgment, as the motion took place within a reference.

Substantial indemnity costs of $7,000 were awarded to the plaintiff.

The plaintiff contractor registered a construction lien and claimed breach of contract damages after the defendant owner terminated their residential construction contract.

The owner counterclaimed for damages, alleging the contractor abandoned the project and left numerous deficiencies.

The court found the contract was a fixed-price agreement with cost-plus ongoing compensation and shared supervision.

The court held the owner failed to prove fundamental breach by the contractor, as most alleged deficiencies were either changes necessitated by site conditions (like sandy soil) or unfinished work, and no proper notice to correct was given.

The owner's termination amounted to wrongful repudiation.

The contractor was awarded $74,259.32 for its lien, lost management fees, and lost profit, while the owner's counterclaim was dismissed.