Charles G. T. Wiebe

The defendant, Hari Kaush Developments Inc. (HKD), brought a motion under sections 47 and 44(5) of the Construction Act to strike the statement of claim, discharge the plaintiffs' claim for lien, and return posted lien security.

HKD argued the lien was untimely and excessive.

The court found triable issues regarding both the timeliness of the lien (due to ambiguity on whether the old or new Construction Act lien period applied and conflicting evidence on the last date of supply) and the quantum of the claim (due to unclear accounting and disputed extras, where oral approval or acquiescence might override written approval requirements).

Consequently, the motion was dismissed in its entirety.

No costs were awarded to either party due to the plaintiffs' egregious delay in complying with undertakings.

The applicants, Gowing Contractors Ltd. and Zurich Insurance Company Ltd., brought a motion seeking further and better production from the defendants Walsh Construction Company Canada and Walsh Construction Co., and leave to amend their pleadings.

The court found that Walsh had overproduced irrelevant documents and failed to produce relevant documents concerning harassment/discrimination allegations and Walsh's delay claim against the City.

The court ordered Walsh to provide a better affidavit of documents, disclose search terms, and produce relevant documents, including those related to its delay claim against the City and its settlement, subject to the City's right to challenge.

Leave to amend pleadings was granted for breach of contract claims but denied for negligence claims and damages related to unrelated projects.

The court also awarded costs thrown away to the applicants due to Walsh's deficient production and late disclosure.

Dufferin Communications Inc. brought a motion seeking to validate email service of a statement of claim on one defendant, Paulo A. Almos, extend the time for service, amend the relief claimed to fall within Small Claims Court limits, and transfer the action to the Small Claims Court.

Despite a significant delay of nearly four years in bringing the motion, the court found no prejudice to the defendant, who had been aware of the claim for an extended period.

The motion was granted, validating the service, extending the time, allowing the amendment, and ordering the transfer, with the court also addressing the applicability of the Hague Convention on Service Abroad.

This decision concerns the quantum and standard of costs awarded following successful motions by CB Bridle Path Inc. and Jia Development Inc. against 2708320 Ontario Ltd. cob Viceroy Homes.

The motions sought to discharge Viceroy's frivolous and vexatious construction lien and dismiss its action for non-compliance with a prior order.

The court awarded full indemnity costs of $85,000 to Bridle Path and substantial indemnity costs of $45,000 to Jia, finding Viceroy's conduct, including fabricating a lien for extortionary purposes, to be egregious.

The court also pierced the corporate veil to hold Viceroy's principal, Andrew Sun, jointly and severally liable for Jia's costs.

This is a costs and interest decision following a trial where Ben-Air Systems Inc. (plaintiff) was found to have a lien and damages for breach of contract, and the defendants' counterclaim was denied.

Ben-Air sought substantial or partial indemnity costs, while Castlemore Plumbing Limited (defendant) sought costs against Ben-Air and its principal.

The court found Ben-Air to be the successful party overall, recovering 43% of its initial claim.

However, the court criticized the conduct of the principals from both parties, finding them equally censurable.

As a result, neither side was awarded substantial indemnity costs, and no personal liability for costs was imposed on Ben-Air's principal.

Ben-Air was awarded $38,000 in partial indemnity costs, approximately 43% of its partial indemnity claim.

Prejudgment interest was also calculated on two amounts at 0.5% per annum.

This construction lien reference involved a summary trial of an issue concerning the timeliness and bona fide nature of Honeywell Limited's claim for lien against Bondfield Construction Company Limited.

The Lien Vetting Committee, comprising Ozz Electric Inc., Urban Mechanical Contracting Ltd., and Zurich Insurance Company Ltd., argued that Honeywell's lien had expired.

The court found that Honeywell failed to prove its claimed last date of supply, as the evidence provided was deficient and contradictory.

The court also addressed the application of the rule in Browne v. Dunn, concluding it was not engaged because the contradictions were within the witness's own affidavit.

Furthermore, the court commented that even if the last date of supply had been proven, the supply after receiving notice of Bondfield's financial issues would not have been bona fide.

Consequently, Honeywell's lien was ruled to have expired and was ordered vacated.

Novelcare Heating & Cooling brought a claim for lien against Erica Herbert and others for the installation of air conditioning units.

Herbert denied the claim and counterclaimed for damages.

The court found Novelcare breached the contract by failing to complete the work (connecting drains and commissioning units) but did not fundamentally repudiate it.

Herbert failed to prove alleged deficiencies in the installed units.

The court awarded Novelcare the unpaid balance of the contract price, reduced by damages for the incomplete work and a discounted value for the lost warranty, resulting in a lien and damages of $16,085.53 for Novelcare.

The applicant, Carolyn Liddy, brought a motion under Rule 30.10 for production of documents from a non-party lawyer, Jeffrey Streisfield, her former counsel in an underlying negligence action.

The documents sought included files received from previous counsel, work product, and invoices, which were deemed relevant to the current action concerning legal costs incurred to "repair" previous work.

Streisfield asserted a lawyer's lien over the documents due to unpaid accounts.

The court found that Liddy failed to establish that it would be unfair to proceed to trial without the documents, as her inability to obtain them appeared to stem from her unwillingness to pay Streisfield's outstanding account, and she had not brought a necessary motion under Rule 15.03(4) to determine the lien's existence and terms.

The motion for production was dismissed.

This motion was brought by Mappro Realty Inc. seeking to correct a misnomer in the defendant's name from Mizrahi Developments Inc. to Mizrahi Development Group (The One) Inc. While the substantive correction was agreed upon, the court addressed the issue of costs.

The court found that Mizrahi Developments Inc. (MDI) should pay Mappro's costs because MDI knew of the misnomer early on but engaged in conduct, including attempting to preserve a groundless limitation defence, that unnecessarily prolonged the motion and caused Mappro to incur needless costs.

The court awarded Mappro substantial indemnity costs, emphasizing that a misnomer order is an application of law, not an indulgence, and that MDI's conduct warranted sanction.

The defendants, Jia Development Inc. and CB Bridle Path Inc., brought a motion under section 47 of the Construction Act to discharge a construction lien filed by the plaintiff, 2708320 Ontario Ltd. cob Viceroy Homes, and vacate the related certificate of action.

They also sought to dismiss the plaintiff's action due to its failure to appoint new counsel after its previous lawyers withdrew.

The court found the lien claim to be frivolous, vexatious, and an an abuse of process, citing lack of evidence for the claimed work and improper purpose.

Additionally, the plaintiff corporation failed to comply with the order to retain new counsel or obtain leave for non-lawyer representation.

The court granted the defendants' motions, discharging the lien, vacating the certificate of action, and dismissing the plaintiff's action.

Trac Developments Inc. ("Trac") moved for an order declaring DNR Restoration Inc.'s ("DNR") construction lien expired due to untimely preservation or, alternatively, reducing the posted security.

The court first determined that the "old" Construction Act applied based on the project's earliest contract date.

Regarding timeliness, the court found genuine issues requiring a trial, as Trac failed to prove DNR abandoned the contract before the lien registration period expired.

On the security reduction, while DNR conceded a significant reduction from its initial claim, Trac's further requested reductions for work orders, May-August work, and rebar accessories were also found to involve triable issues.

Consequently, the motion to declare the lien expired was dismissed, and the security was reduced only to the amount DNR had already conceded plus security for costs.

No costs were awarded due to the mixed success and DNR's initial inflated lien claim.

The plaintiff, Ben-Air Systems Inc., brought an action for a construction lien and damages for breach of contract against Castlemore Plumbing Limited and 2664835 Ontario Inc. The claim against 2664835 Ontario Inc. was discontinued.

Ben-Air alleged wrongful repudiation of the subcontract by Castlemore and sought payment for extras and delay costs.

Castlemore counterclaimed for damages to complete the work.

The court found that Castlemore wrongfully repudiated the subcontract, denying its claim for completion costs.

The court denied Ben-Air's claims for specific extras and delay costs due to lack of proof and credibility issues.

The court ultimately determined Ben-Air's lien and damages based on the original contract, undisputed extras, and a judicially determined credit for uncompleted work, dismissing Castlemore's counterclaim.

The plaintiff brought a motion seeking leave for an additional 7 hours of discovery time for the defendant's representative in a wrongful termination action.

The plaintiff had already conducted 5.5 hours of discovery.

The defendant offered an additional 3 hours, while the plaintiff sought 7.

The court granted the plaintiff an additional 4.5 hours, resulting in a total of 6 additional hours of discovery.

The decision considered the defendant's imprecise pleading, the complexity of the case involving discrimination claims and examination of the defendant's conduct patterns, and the amount at issue.

The court declined to award costs to either party, noting the plaintiff's partial success but also the lack of negotiation efforts for the motion itself.

This case involved a construction dispute where the plaintiff, Save On Contracting, claimed construction liens and damages against the defendant property owners.

The defendants counterclaimed for costs to complete and correct deficiencies, alleging Save On repudiated the contract.

The court analyzed the contract's interpretation regarding Tarion warranty security, whether one of the defendants was a "builder" under the Ontario New Home Warranties Plan Act, and whether Save On fundamentally breached the contract.

The court found that Save On repudiated the contract by making groundless payment demands and abandoning the site.

Consequently, Save On's claims were dismissed, and the defendants were awarded damages for the costs of completing the work and correcting deficiencies.

Weiyan Li brought motions for default judgment against Guru Constrarchit Ltd. and Guangcheng Zhu (its principal) in two related construction actions, after they failed to engage with the proceedings following removal orders.

The court granted default judgment, finding Guru and Mr. Zhu liable for breach of contract, conversion of project funds, and breach of trust due to significant deficiencies in construction work, misappropriation of funds, and Mr. Zhu's fraudulent conduct and domination of Guru.

Damages were awarded based on diminution in value rather than cost of cure, along with punitive damages and substantial indemnity costs.

The plaintiff brought a motion for a certificate of pending litigation on a pre-construction corner lot, claiming inadvertent cancellation of the purchase agreement.

The court dismissed the motion, finding the plaintiff's claim to an interest in the land dubious, noting inordinate delay in bringing the motion, and concluding that the property was not unique and damages would be an adequate remedy.

The balance of convenience also favored the defendants, who had a pending sale to a third party.

The applicant corporation sought leave for its principal to represent it in a construction lien action, despite having legal counsel.

The respondents opposed, raising concerns about the principal's advocacy ability and seeking security for costs.

The court granted leave on the condition that the applicant post $56,000 as security for costs by a specified date.

The court found that while the principal's advocacy ability was a concern, it did not meet the "too high a threshold" for denial, but imposed the security for costs to "level the playing field" and ensure procedural fairness, given the existing security posted by the defendants in the construction lien context.

Failure to post the security would result in the claim and defence to counterclaim being stayed.

The defendants, Fowler Construction Company Limited and The Corporation of the City of Toronto, brought a motion under Rule 33.01 of the Rules of Civil Procedure to compel the plaintiff, Tennisha Pulford, to attend a defence neuropsychological examination.

The plaintiff opposed, arguing the motion lacked evidence and sought to corroborate a deficient prior expert opinion.

The court granted the motion, emphasizing the principle of "trial fairness" and the need for "matching reports" from experts in the same specialty, particularly given the plaintiff's assertion of cognitive and neurological damage.

Despite a noted deficiency in the defendants' supporting evidence, the court found the need for the examination outweighed this, and that it would not delay the trial.

No costs were awarded due to the evidence deficiency.

The plaintiffs, a builder and his wife, claimed a construction lien and damages for breach of contract and delay against the defendant homeowners, who counterclaimed for deficiencies and uncompleted work.

The court found the construction contract was a fixed-price agreement, not cost-plus, and that the plaintiffs failed to prove entitlement to extras due to lack of written authorization as required by the contract.

The court allowed some of the defendants' back-charges for deficiencies and uncompleted work against a holdback.

It also found both parties equally responsible for project delays, awarding the plaintiffs a portion of their claimed delay damages.

Ultimately, the plaintiffs were awarded a net amount significantly less than their initial claim.

The defendants brought a motion under section 47 of the Construction Act to discharge the plaintiff's construction lien, vacate the certificate of action, and dismiss the action.

The motion was based on four grounds: the oral contract was prohibited by the Statute of Frauds, lack of corroboration under the Evidence Act section 13, lack of certainty in the contract's essential elements, and no claim for unjust enrichment.

The court dismissed the motion, ruling that the Construction Act is a complete code for construction liens, allowing for oral contracts as an exception to the Statute of Frauds.

It also found that the Evidence Act section 13 did not apply as the action was not against the deceased's estate, the oral contract had sufficient certainty, and the unjust enrichment claim was an alternative remedy not subject to a section 47 motion.

Costs were awarded to the plaintiff.