Christine Kellowan

The parties brought cross-motions in a construction lien action.

The plaintiff moved to strike paragraphs of the defendant's Statement of Defence and Counterclaim as frivolous and vexatious, arguing they pleaded irrelevant and prejudicial facts regarding a failure to assist in obtaining financing.

The defendant moved to compel answers to refused questions and production of documents from a section 40 cross-examination, and sought costs thrown away.

The Master dismissed the motion to strike, finding the pleaded facts were material to the alleged breach of contract.

The Master ordered the plaintiff to produce the requested costing documents, as the nature of the contract (fixed price vs. cost-plus) was in dispute, making the documents potentially relevant.

The request for costs thrown away was denied.

The defendant Aizenstros brought a motion seeking a declaration that the plaintiff Nigeco's construction lien was invalid, arguing it was registered out of time because the contract was either terminated by Aizenstros on June 13, 2017, or abandoned by Nigeco on June 5, 2017.

Nigeco contended the contract was never completed and the lien was validly registered within 45 days of Aizenstros abandoning it.

The court found that the contract was neither abandoned by Nigeco nor terminated by Aizenstros on the dates claimed, as post-purported termination conduct, including a site visit and continued negotiations, indicated an ongoing intention to complete the project.

The court determined the contract was terminated by Nigeco on August 3, 2017, when Aizenstros failed to respond to resolution efforts.

Consequently, the lien was valid, and the defendant's motion was dismissed.

The appellants, former clients of a law firm, appealed an order dismissing their application to assess 33 legal accounts issued between November 2010 and July 2013.

The appellants sought assessment on grounds of dissatisfaction with services and alleged overcharging, claiming special circumstances warranted assessment despite the application being brought more than 12 months after the accounts were issued.

The appellants argued they had only received the accounts in 2016 as a package with a demand letter, and cited their unsophistication, the high amount in dispute, and growing dissatisfaction as additional special circumstances.

The application judge rejected these arguments, finding the appellants' claim of non-receipt lacked credibility and noting they were sophisticated individuals who had previously paid substantial amounts and had not expressed dissatisfaction when services were rendered.

The Court of Appeal upheld the dismissal.

The defendants brought a motion for summary judgment, arguing that a document signed by the parties constituted a full and final release settling their real estate development dispute.

The plaintiff argued the document was merely a receipt for a partial payment and that no settlement was reached.

The court found that the document lacked the necessary reciprocity and clarity to be definitively interpreted as a release without a trial.

The motion for summary judgment was dismissed, as genuine issues for trial remained regarding the context and meaning of the document.

The defendant brought a motion for security for costs under Rule 56.01(1)(d), arguing the corporate plaintiff had insufficient assets in Ontario to pay a potential costs award.

The plaintiff, a small trade contractor seeking $340,000 for unpaid invoices, opposed the motion.

The Master found the defendant failed to meet its initial burden, noting the plaintiff had ongoing contracts, work in progress, and accounts receivable, and the potential costs liability for defending the action was modest ($17,000).

The motion was dismissed with costs awarded to the plaintiff.