Charles W. Skipper

This motion for directions concerned the release of garnished funds held by the City of Thunder Bay.

The Plaintiff/Creditor, Mirmil Products, had a judgment against the Defendant/Debtor, Man-Shield (NWO) Construction Inc. (Manshield).

Manshield challenged the garnishment, arguing the funds were owed to a different entity, MBuilds (NWO) Limited Partnership, or were subject to a statutory trust under the Construction Act.

The court found that the City owed the funds to Manshield, not MBuilds, and that the corporate name change did not alter the entity's identity or obligations.

The court also dismissed the trust argument, finding it irrelevant as all subtrades were paid.

The motion for directions was granted, ordering the garnished funds to be paid to Mirmil Products.

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.

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 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.

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.

This judgment addresses two motions within a garnishment proceeding.

First, M Builds (NWO) Limited Partnership sought to be added as a co-defendant or joined as a necessary party to the garnishment, which was granted for the purpose of filing materials and making submissions.

Second, 1022403 Ontario Ltd. (Mirmil), a judgment creditor, moved for security for costs against Man-Shield (NWO) Construction Inc. (MS).

The court found Mirmil had a prima facie entitlement to security for costs under Rule 56.01(1)(c).

MS failed to demonstrate sufficient assets or a good chance of success on the merits, given its inconsistent positions regarding the ownership of garnished funds and the City of Thunder Bay's evidence.

The court also rejected MS's argument that the funds were subject to a trust under the Construction Act, as section 7 does not apply to municipalities and section 8 was not engaged due to subcontractors being paid.

Consequently, MS was ordered to post security for costs totaling $12,000.

The appellant general contractor appealed a trial judgment awarding $142,553.33 to the respondent subcontractor in a construction lien action.

The appellant argued the respondent abandoned the project when faced with a payment dispute.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the respondent had fully performed its obligations and did not abandon the contract, but rather stopped work due to the appellant's material breach in refusing to pay.

Following the dismissal of the respondent's motion for security for costs of a pending appeal, the successful appellant sought costs of $12,255.13 on a partial indemnity basis.

The respondent argued the amount was excessive and sought to have costs fixed at $6,506.26, payable in any event of the cause.

The court found the appellant's claimed hours excessive given the lack of complexity and brevity of the materials, fixing costs at $7,500 inclusive.

The court declined to order costs payable in any event of the cause, applying the presumptive rule that interlocutory costs are payable within 30 days.

The applicants, minority shareholders, commenced an oppression application against the respondents, the majority shareholders and the corporation.

The parties consented to a trial to determine the value of the applicants' shares, which the respondents would purchase.

The court resolved several methodological disputes between the parties' expert valuators regarding maintainable earnings, capitalization rates, and redundant assets.

Crucially, the court held that no minority discount should be applied to the valuation of the applicants' shares, as the purchase was a compulsory consolidation of the majority's position rather than an open market transaction.

The owner of leased commercial premises moved under the Construction Lien Act to declare three construction liens invalid and to discharge security posted to vacate them, arguing the lien claimants failed to correctly identify the owner in their claims for lien.

The court considered whether the naming errors constituted non‑compliance with s. 34(5) of the Act or merely a failure to strictly comply curable under s. 6.

The evidence showed the tenant owner had used multiple corporate and unregistered names and had not registered certain business names, contributing to confusion about the proper legal entity.

The court held that the errors—misplacing the owner’s name in the electronic form or naming related Equinox entities—were failures to strictly comply but not fatal defects, and no prejudice was established.

Motions to discharge the liens were dismissed and the lien claimants were permitted to amend pleadings to correctly name the tenant owner.

Following several procedural motions in related fraud, foreclosure, and construction lien proceedings concerning contaminated industrial property, the court addressed the issue of costs.

The moving party had successfully obtained orders consolidating the actions, transferring the foreclosure proceeding to the same venue as the lien actions, and staying enforcement of any foreclosure order pending resolution of the fraud claim, while also resisting motions for further production.

Applying the principles governing costs under Rule 57.01 of the Rules of Civil Procedure and the Courts of Justice Act, the court held that the moving party was substantially successful and entitled to partial indemnity costs.

The court considered proportionality, complexity, and reasonable expectations of the parties in fixing the amount.

Costs were awarded jointly and severally against the responding parties, with additional costs awarded for an unnecessary adjournment attendance.

The appellants appealed a summary judgment order regarding a real estate transaction.

They argued the motion judge erred in applying the test for uniqueness of the property by giving undue emphasis to subjective elements.

The Court of Appeal dismissed the appeal, finding that the motion judge properly applied the test and was entitled to accept the evidence of the respondent's wife regarding the property's uniqueness.

A cross-appeal by the respondent for further damages was also dismissed.

Costs were awarded to the respondent.