Associate Judge Charles G. T. Wiebe

The defendant brought a motion seeking an order for the plaintiff to attend an independent medical examination (IME) with a physiatrist specializing in amputations.

The plaintiff, who had sustained a leg amputation, opposed the motion, arguing that their condition had not changed significantly since a previous defence medical assessment by an occupational medicine specialist, and that the request was a "do over." The court granted the motion, emphasizing the principle of fairness to allow the defendant to obtain expert evidence in a specialized area (amputation treatment) to respond to the plaintiff's physiatrist's opinion and to "level the playing field" in assessing damages.

The defendant, Pomerleau Inc., brought a motion to adjourn a scheduled 18-day trial on the basis that a pending contested bankruptcy motion against the plaintiff, ABCO One Corporation, would likely result in bankruptcy, rendering trial preparation a waste of money.

The court granted leave for the motion under the Construction Lien Act but dismissed the motion to adjourn.

The court relied on expert evidence that a bankruptcy judge would likely stay any bankruptcy order to allow the trial to proceed, and noted that adjourning the trial might improperly influence the bankruptcy judge.

The court awarded costs of $1,000 to the plaintiff, reduced because the matter could have been handled more efficiently via a case conference.

The plaintiff brought a motion under Rule 45.02 for an order requiring the defendants to pay $1,848,000 into court.

The funds were originally held in escrow pursuant to an asset purchase agreement but were released to the defendants after the plaintiff failed to serve a loss notice on the escrow agent before the contractual deadline.

The court dismissed the motion, finding no serious issue to be tried regarding the plaintiff's claim to the specific fund, as the defendants did not improperly direct the release of the funds and the escrow agent acted in accordance with the agreement.

The plaintiff in a construction lien action brought a motion for leave to amend its Statement of Claim to plead restitution unjust enrichment and for leave to file a document brief at trial.

The court denied leave to amend, finding that the proposed amendments were legally untenable because the Construction Lien Act prohibits joining non-contractual claims, such as pure restitution unjust enrichment, in a lien action.

However, the court granted the plaintiff leave to file its document brief at trial, as the documents were potentially relevant and any prejudice from late service was mitigated by a trial adjournment.

Costs of $7,500 were awarded to the responding party.

The plaintiff in a wrongful dismissal action moved for a further and better affidavit of documents and to compel answers to questions refused at discovery.

The plaintiff alleged constructive dismissal after the defendant unilaterally reduced his compensation package.

The defendant claimed it had unfettered discretion to vary the commission structure based on business realities, including profitability.

The court found the defendant's financial records relevant to test its claim regarding business realities and ordered production of financial books and records from 2000 to 2016.

The court also ordered the defendant's representative to answer most of the refused discovery questions, finding them relevant to the profit margin issue.

The plaintiff was awarded $8,000 in partial indemnity costs.

The parties brought cross-motions regarding refusals and undertakings from examinations for discovery.

The plaintiff sought to compel answers from the defendants and the Attorney General, while the Attorney General sought to compel answers from the plaintiff, clarify the scope of the pleadings, and obtain foundational information for the plaintiff's expert report.

The court ordered the plaintiff to produce a refused sales graph, amend its pleadings to clarify the temporal scope and damages claim, and provide the foundational information for its expert report.

The plaintiff's motion against the Attorney General was dismissed, as the court found the undertaking regarding correspondence with U.S. regulators was adequately answered.

The applicant was successful on a motion for a certificate of pending litigation and in defeating a cross-motion to stay the application.

In determining costs, the court rejected the applicant's revised costs outline, which substantially increased the hours claimed and was submitted after the fact, relying instead on the initial costs outline to protect the integrity of the process.

The court awarded the applicant $30,000 in partial indemnity costs, which included full indemnity costs for an unreasonable motion brought against the applicant's representative.

The plaintiff insurer brought a motion to extend the deadline for setting the action down for trial, effectively seeking to avoid the Registrar's dismissal of the action for delay.

The court applied the test for setting aside a dismissal order, including the Reid factors.

Although the plaintiff failed to adequately explain its 19-month delay or prove inadvertence, the court granted the extension because the defendants failed to establish actual prejudice resulting from the delay.

However, due to the plaintiff's lengthy unexplained delays and conduct, the court ordered the successful plaintiff to pay the defendants $30,000 in substantial indemnity costs.

The defendants brought a motion to set aside a noting in default and default judgment, which was resolved on consent.

The only remaining issue was costs.

The defendants' in-house counsel sought costs against the plaintiff's lawyer personally, alleging he fabricated evidence of a misfiled Notice of Intent to Defend to trap the defendants.

The court found these allegations of professional misconduct to be completely groundless and reprehensible.

As a result, the court dismissed the defendants' costs claim and ordered the defendants to pay the plaintiff and its lawyer $30,592 in substantial indemnity costs.

The moving party sought leave to issue a certificate of pending litigation (CPL) regarding a commercial property, claiming an interest based on a Sales Representation Agreement.

The responding party brought a cross-motion to stay or dismiss the application, arguing the moving party was an unregistered broker under the Real Estate and Business Brokers Act (REBBA) and operated under an unregistered business name contrary to the Business Names Act (BNA).

The Master dismissed the cross-motion, finding the transaction was part of an ongoing business venture rather than a simple real estate trade, and that the business name non-registration was inadvertent.

The Master granted the CPL, noting the moving party established a triable issue regarding its interest in the property, but ordered the CPL postponed to existing and construction financing to avoid harming the development project.

In a construction lien trial arising from a window and door supply-and-install contract for a mixed-use property renovation, the owners alleged the contractor failed to perform masonry work, supplied non-conforming products, and performed deficient installation work, then counterclaimed after removing the installed windows and terminating the contract.

The court found the contractor had no contractual obligation to perform masonry work, had substantially supplied the contracted products save for a transom it was prepared to replace, and that the alleged deficiencies were largely unfinished items that could have been remedied had access not been denied.

The owners' termination was held to be an unjustified repudiation of the contract.

Judgment was granted for the unpaid balance of $11,770 together with prejudgment interest at 10% per annum, a lien in that amount, and dismissal of the counterclaim.

Trenchline Construction Inc. (TCI) brought a claim for $449,862.61 in "stand-by charges" against Trisura Guarantee Insurance Company (under a Labour & Material Payment Bond) and Unimac-United Management Corp. and Metrolinx (under a construction lien).

The court found that while TCI had a contractual entitlement to claim standby costs under the incorporated CCDC General Conditions, it failed to provide sufficient corroborating evidence to prove these costs were actually incurred.

The court also found TCI's "onsite" standby claim to be an attempt to inflate the claim, significantly detracting from the credibility of its principal witness.

Consequently, TCI's standby costs claim was denied in its entirety, both under the Bond and as lien rights.

The plaintiff contractor, RPC Construction Ltd., claimed a construction lien and damages for breach of contract against the defendant owners, Zhiyi Zhou and Li Na Wu, for renovation work on their property.

The defendants denied the claim and counterclaimed for set-off and damages.

The court found that the defendants improperly terminated the contract, entitling RPC to the remainder of the contract price and unpaid extras.

The court dismissed the defendants' counterclaim, largely due to issues of credibility, lack of corroboration, and the doctrine preventing owners from back-charging for deficiencies when they wrongfully terminate a contract and deprive the contractor of the opportunity to correct them.

The defendant brought a motion for leave under s. 67(2) of the Construction Lien Act for production and discovery of the plaintiff.

The plaintiff brought a cross-motion for similar relief against the defendant.

The plaintiff had previously set the action down for trial, triggering Rule 48.04(1) of the Rules of Civil Procedure, which requires a substantial and unexpected change in circumstances to grant leave for further discovery.

The court granted the defendant's unopposed motion.

The court dismissed the plaintiff's cross-motion, finding that the plaintiff deliberately chose to set the action down for trial without completing discoveries and failed to meet the strict test under Rule 48.04(1).

This is a costs decision following a trial in a construction lien matter where the plaintiff, Marlene McCloy, was largely successful.

The court awarded partial indemnity costs to McCloy for the period up to June 29, 2016, and substantial indemnity costs thereafter, pursuant to Rule 49.10(1) of the Rules of Civil Procedure, as McCloy's offers to settle were more favourable than the trial outcome.

The court declined to award costs personally against the defendant's counsel, Michael E. Freeman, despite frustrating conduct, accepting his explanations of weather delays and a Parkinson's flare-up.

Total costs awarded to McCloy against Bennett were $77,995.03, plus prejudgment interest.

The defendants brought a motion for summary judgment to dismiss the action, or parts thereof, primarily concerning the identity of the parties to the governing contract.

The plaintiff opposed the motion.

The court found that there was a genuine issue requiring a trial regarding which party the plaintiff had contracted with, particularly due to ambiguities in agency representation and inconsistent documentation.

The Master declined to exercise discretionary powers to resolve this issue outside of the scheduled lien trial, determining that it would be more cost-effective and proportionate to address it within the context of the full trial.

Consequently, the defendants' motion for summary judgment was dismissed.

The plaintiffs, Joseph and Anna Iacolucci, brought a motion to set aside a Registrar's dismissal order dated November 20, 2013, and to set a fresh timetable for their action against TD Waterhouse Canada Inc. and Carrie Anderson.

The action, commenced in 2007, alleged breach of contract, negligence, negligent misrepresentation, and breach of fiduciary duty related to investment losses.

The court dismissed the motion, finding that the plaintiffs failed to provide an adequate explanation for the inordinate delay of over six years, that the failure to meet the set-down deadline was not due to inadvertence, that the motion to set aside the dismissal was not brought promptly, and that the defendants suffered actual prejudice due to lost documents and faded memories.

The court emphasized the need to enforce timelines and the unfairness to the defendants in resurrecting the action after such significant delay and abandonment.

The defendants in two construction lien actions, Pier 27 and L Tower, brought motions seeking orders for the plaintiff, Yuanda Canada Enterprises Ltd., to post security for costs totaling over $1 million.

The court dismissed both motions, finding that the defendants failed to establish "good reason to believe" that the plaintiff had insufficient assets in Ontario to pay costs.

The court emphasized the high threshold for such motions, requiring indicia of insolvency or instability, and noted that the certified basic holdback owed to the plaintiff by the Pier 27 Defendants, exceeding the claimed security for costs, constituted a sufficient asset.

Metrolinx, the owner of a construction project, moved to post the agreed basic and notice holdback amounts into court to vacate several subtrade liens and have the actions against it dismissed.

The subtrades consented to the posting but argued Metrolinx should also be required to post security for prejudgment interest and pay their costs.

The Master held that holdback is a retention obligation, not a payment obligation, and therefore does not attract prejudgment interest under the Courts of Justice Act.

However, the Master awarded partial indemnity costs to the subtrades, finding that Metrolinx unnecessarily lengthened the proceedings by aggressively defending the entirety of the subtrade claims instead of posting the holdback early in the litigation.

Following a trial of an issue regarding notice holdback liability under the Construction Lien Act, the plaintiff sought costs.

The defendant argued for no costs due to divided success and public interest.

The court found the plaintiff was the successful party, having established $215,054.80 in holdback liability.

While the court reduced the costs claim for proportionality and divided success, it elevated the base standard to substantial indemnity due to the defendant's capricious conduct regarding a section 39 response.

The plaintiff was awarded $150,000 in costs.