Associate Judge Charles G. T. Wiebe

The plaintiff in a construction dispute brought a motion to compel the defendants to answer questions refused at discovery and to produce a further and better affidavit of documents.

The core issue was whether the defendants implicitly waived solicitor-client privilege regarding advice received during the negotiation of an Amending Agreement.

The Master found no waiver regarding the negotiation of the agreement, but found an implicit waiver regarding advice on payments made after the agreement.

The Master also ordered disclosure of competing quotations but denied requests for consultant files and financial means.

The plaintiff was granted leave to complete the discovery and awarded partial indemnity costs of $6,500.

Following the settlement of a construction lien action for $17,000, the parties disputed the quantum of costs payable to the plaintiff.

The plaintiff sought over $22,000, while the defendant argued costs should be limited to Small Claims Court tariffs because the plaintiff failed to take the least expensive course of action.

The court awarded the plaintiff $8,000 in costs, finding that while the plaintiff should have transferred the matter to Small Claims Court earlier, the defendant also delayed in bringing its motion to declare the lien expired.

Following a trial where the plaintiff was awarded the full amount of its construction lien and breach of contract claim ($73,767.26), the court determined costs and interest.

The plaintiff had made an offer to settle for $55,000, which the defendant ignored.

The court found the defendant's conduct throughout the litigation to be obstinate, provocative, and designed to delay.

Despite the costs claimed ($123,565.03) being disproportionate to the judgment amount, the court awarded $120,000 for the reference and $15,000 for a motion to strike on a substantial indemnity basis, emphasizing that proportionality should not reward unreasonable conduct.

Prejudgment interest was set at 1% and post-judgment at 2%.

The defendant, Mario Ignacio Rossi Diaz-Munoz, brought a motion to set aside an ex parte order that authorized the registration of a certificate of pending litigation (CPL) on his condominium unit.

The plaintiff, Lina Mao, had obtained the CPL claiming a constructive trust over the unit.

The court found that the ex parte motion should have been brought on notice and, crucially, that the plaintiff failed to make full and fair disclosure of material facts, including a signed residential tenancy agreement, emails confirming a landlord-tenant relationship, and the true nature of the N12 notice to end tenancy.

Due to this gross lack of disclosure and misrepresentation, the motion was granted, and the certificate of pending litigation was discharged.

The plaintiff, New Generation Woodworking Corp. (NGW), brought a construction lien action against Adam Arviv for $73,767.26 for unpaid millwork on a luxury condominium unit.

Arviv defended and counterclaimed for alleged overpayment and deficiencies, but his counterclaim was struck due to his persistent non-compliance with court orders and lack of engagement.

The court found that Arviv had repudiated the contract by ceasing payments and denying access, and that NGW had substantially completed its work.

The court ruled in favour of NGW, awarding the full amount claimed and confirming the validity and priority of its construction lien over Arviv's property and a second mortgage, with limited priority over the first mortgage to the extent of the basic holdback deficiency.

The plaintiff, Diamond Drywall Contracting Inc., brought a motion to extend the time for serving its statement of claim, which was opposed by the defendants who also sought a declaration that the lien had expired and the action be dismissed due to non-service.

The court granted the plaintiff's motion, finding the explanation for the nine-month delay "borderline" but acceptable, particularly given the COVID-19 pandemic and the absence of actual prejudice to the defendants.

The defendants' motion was dismissed.

Despite losing on the substantive motions, the defendants were awarded $5,000 in partial indemnity costs, as the litigation was necessitated by the plaintiff's initial failure to serve the statement of claim within the statutory period.

The defendants brought a motion to declare the plaintiff's construction lien expired and to vacate it, arguing it was not preserved in time and the statement of claim was not served within the 90-day statutory period.

The court found the lien was preserved in time based on the actual date of contract termination.

Regarding the late service of the statement of claim, the plaintiff's counsel admitted to a six-month delay, citing oversight and the impact of the COVID-19 pandemic.

The court adjourned the motion to allow the plaintiff to bring a cross-motion for an extension of time for service, requiring more evidence on the pandemic's effect on the delay.

On the first day of a trial, the self-represented defendant brought motions to adjourn the trial to retain counsel and for the Master to recuse himself due to an alleged reasonable apprehension of bias.

The Master dismissed the adjournment motion, finding the defendant's lack of counsel was a deliberate delay strategy.

The Master also dismissed the recusal motion, holding that a passing comment about the defendant travelling abroad during the COVID-19 pandemic did not demonstrate anti-Semitic or anti-elitist bias.

The plaintiff brought a motion to strike the defendant's statement of defence and counterclaim for failing to comply with trial directions to deliver affidavits for evidence in chief.

The defendant, who was self-represented after his counsel was removed, brought a motion to adjourn the trial to retain new counsel.

The court found the defendant's non-compliance was deliberate, part of a delay strategy, and showed a profound lack of interest in the proceedings.

Applying the test for striking pleadings, the court struck the defendant's set-off and counterclaim but allowed the defence to stand so the defendant could cross-examine the plaintiff's witnesses.

The motion to adjourn was dismissed.

The plaintiff contractor brought a construction lien action against the defendant owner for unpaid renovation work on a commercial condominium unit.

The parties disputed seven claims for extra work and a 10% discount clause for delay inserted by the owner.

The court found that the extra work was outside the scope of the contract and implicitly authorized, awarding the plaintiff $5,755.09 for the extras.

The court also held that the 10% discount clause was an unenforceable penalty, as it was not a genuine pre-estimate of damages, and dismissed the owner's claim for delay damages.

Judgment was granted in favour of the plaintiff for $12,535.09.

The plaintiff brought a motion for a sixth timetable order to avoid dismissal of her action for delay under Rule 48.14.

The defendants opposed, arguing the action should be dismissed due to the plaintiff's repeated failures to move the litigation forward over ten years.

The court found the plaintiff's explanations for delay largely unacceptable but declined to dismiss the action because the defendants maintained a closely linked counterclaim and had also been dilatory.

The court granted the motion, imposing a strict peremptory timetable to ensure the action proceeds to trial.

The plaintiff brought a motion to strike the defendants' statement of defence and counterclaim under Rule 60.12, alleging non-compliance with trial management directions to deliver a Scott Schedule.

The court found that while the defendants' Scott Schedule was imperfect, they had made a good faith effort to comply and offered to revise it expeditiously upon retaining new counsel.

The court dismissed the motion, noting that striking pleadings is a draconian measure reserved for repeated and blatant disregard of court orders.

The court awarded substantial indemnity costs to the defendants because the plaintiff unreasonably forced the motion and ignored a favourable offer to settle.

The defendant brought a motion to declare the plaintiff's construction lien expired.

The plaintiff conceded the lien had expired, leaving only the issue of costs to be determined.

The defendant sought substantial indemnity costs for an earlier motion to vacate the lien and partial indemnity costs for the current motion.

The court awarded the defendant a total of $5,500 in partial indemnity costs, reducing the amounts claimed due to the straightforward nature of the motions and unnecessary factum preparation.

Melissa Hrvoic brought a motion seeking to compel Aaron Franks to answer 53 questions refused on grounds of solicitor-client and litigation privilege during a Rule 39.03 examination.

The motion also faced dismissal due to Melissa Hrvoic's non-compliance with a prior interlocutory order to return $500,000.

The court found the questions relevant and the privileges properly asserted.

It determined that Mr. Hrvoic had not waived privilege by including an explanatory letter from his lawyer in the record, as this did not constitute using legal advice as a material fact in his claim or defence, nor was it equivalent to filing an affidavit.

The court also dismissed the motion due to Melissa Hrvoic's non-compliance with Justice Dow's order.

This decision addresses costs and interest following a trial where the plaintiff's action was dismissed, and the defendants were awarded damages for breach of contract.

The court exercised its broad discretion under the Construction Act, guided by the Rules of Civil Procedure, including Rule 49.10 regarding offers to settle.

The defendants sought substantial indemnity costs, but the court awarded partial indemnity costs for the period prior to December 31, 2019, and substantial indemnity costs for the period after, due to the plaintiff's grossly unreasonable settlement expectations which caused the case to proceed to trial.

The court also adjusted disbursements, including expert fees, and determined prejudgment and post-judgment interest rates.

The Gatti Group Corp. (GGC), a contractor, claimed a lien of $343,429.76 against John and Claudia Zuccarini for a residential renovation project.

The Zuccarinis denied the claim and counterclaimed for $382,371.50 for breach of contract.

The court found that a fixed-price contract existed between the parties, which GGC fundamentally breached by demanding additional payments not required by the contract and by ceasing work before completion.

The court dismissed GGC's claim and discharged its lien, awarding the Zuccarinis $332,667.44 in damages for change order overpayment, deficiency correction costs, completion costs, an assigned debt, and a returned deposit.

The plaintiff, Caruk-Hall Construction Inc. (CH), moved to stay its action and the defendants' counterclaim pending a Tarion regulatory proceeding, or alternatively, to stay or strike paragraphs related to CH's alleged failure to enroll the project under the Ontario New Home Warranties Plan Act (ONHWPA).

The defendants opposed.

The court found a substantial overlap of issues regarding CH's "builder" status and ONHWPA enrollment between the civil action and the Tarion proceeding.

While acknowledging the penal nature of the Tarion charges and potential self-incrimination for CH's principals, the court determined that existing protections (implied undertaking rule, sealing orders) were sufficient.

The court rejected a full stay, noting the Construction Act's mandate for summary lien actions and the lack of evidence for double recovery.

Ultimately, the court granted a limited stay of only the "Overlapping Paragraphs" in the defendants' pleading that directly concerned CH's builder status and ONHWPA enrollment, finding the OCJ to be the more appropriate forum for these specific issues.

Following a successful motion to enforce a settlement agreement, the plaintiff sought costs for both the motion and the underlying action.

The court found that the settlement agreement explicitly provided for the plaintiff's legal costs of the action in the event of default.

After deducting amounts related to a separate union claim, the court awarded the plaintiff $12,000 in partial indemnity costs for the action and $6,500 in partial indemnity costs for the motion.

This decision addresses costs and interest following a trial where ABCO One Corporation's claims were dismissed, and Pomerleau Inc. was awarded $516,458.18 against ABCO.

The court awarded Pomerleau $500,000 in costs against ABCO, considering ABCO's lack of success, its failure to make serious settlement attempts, and its conduct during trial.

Canada-Wide Reinforcing Steel Co. (CW) was awarded $37,000 in substantial indemnity costs against Pomerleau, due to Pomerleau's unreasonable insistence on CW re-proving its default judgment and a 'bullying' settlement offer.

Prejudgment interest on Pomerleau's judgment against ABCO was also calculated based on specific breach dates.

The plaintiffs, John Moore Construction Management Inc. and Higgins Electrical Contracting Services Ltd., brought a motion to enforce accepted offers to settle and determine costs against Artworld Inc. Artworld had accepted settlement offers but delayed agreeing to judgments and disputed the plaintiffs' claimed costs, attempting to refer them to an assessment officer despite the Master's clear jurisdiction.

The Master found the motion necessary due to Artworld's unreasonable conduct and lack of good faith in resolving the costs issue.

The Master accepted the plaintiffs' costs calculations, with a slight adjustment for partial success, and awarded substantial indemnity costs for the motion due to Artworld's delaying tactics.