Christian R. Riveros

The appellant appealed an order dismissing its motion opposing the confirmation of a report made by an Associate Judge following a consolidated construction lien action.

The Divisional Court found no error of law or palpable and overriding error of fact in the motions judge's decision.

The appeal was dismissed, and costs were awarded to the respondents.

The moving party, a subcontractor, brought a motion to oppose the confirmation of an Associate Justice's report arising from a 24-day consolidated construction lien trial.

The subcontractor argued that the Associate Justice erred in finding that the general contractor did not breach the payment terms, that the termination of the contract was justified, and that the general contractor did not breach the duty of good faith.

The Superior Court of Justice found no errors in principle or palpable and overriding errors of fact or mixed fact and law in the Associate Justice's findings.

The motion to oppose confirmation was denied and the report was confirmed.

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 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 was successful in a wrongful dismissal trial and sought costs.

Following the trial but before costs were decided, the defendant made a voluntary assignment into bankruptcy.

The court noted that the plaintiff did not need to seek an order lifting the stay under the Bankruptcy and Insolvency Act to obtain a costs order, as judgment was rendered prior to the assignment.

The plaintiff beat its offer to settle and sought full indemnity costs of over $232,000.

The court applied the overriding principle of reasonableness, declining to engage in a purely mathematical exercise of reviewing time spent, and fixed the plaintiff's costs at $73,000 inclusive of fees, disbursements, and HST.

The plaintiff, a 60-year-old upholsterer with 32 years of service, sued his former employer for wrongful dismissal.

He passed away before trial, raising preliminary evidentiary issues regarding the admissibility of his examination for discovery transcripts and hearsay statements made to others.

The court admitted the evidence under the principled approach to hearsay.

On the merits, the court found the plaintiff was wrongfully dismissed, not having resigned as the employer claimed, and awarded 23 months' reasonable notice.

The court also awarded $5,000 for a breach of the Human Rights Code, finding the termination was partly based on age and disability, but dismissed claims for aggravated and punitive damages.

The defendant moved to set aside a noting in default in a construction lien action, arguing that the statement of claim had not been properly served and that it did not come to its attention before the deadline to deliver a defence.

The court held that service was valid under both the Rules of Civil Procedure and the Construction Lien Act because the claim was left with a person appearing to be in control of the registered business address and was also served by registered mail to the address listed in a registered lien document.

The court further found the defendant failed to demonstrate a reasonable explanation for not defending, failed to establish a continuous intention to defend, and failed to provide evidence of a meritorious defence as required by s. 54 of the Act.

Bare denials and unsupported allegations regarding lien preservation, perfection, and alleged accounting discrepancies were insufficient.

The motion to set aside the noting in default was dismissed.