Christopher M. Stanek

Following summary judgment and cross-motions in a construction lien dispute, the court addressed competing claims for costs.

Both parties asserted substantial success: the plaintiff emphasized that key lien issues proceeded to trial, while the defendant argued it had significantly reduced its potential liability by eliminating several claims.

The court determined that success on the motions was divided.

Exercising its discretion under costs principles including proportionality and fairness, the court declined to award costs to either side for the motion and cross-motion.

Remaining costs in the action were left to be determined by the Construction Lien Master in the cause.

A contractor commenced a construction lien action after supplying refrigeration equipment to a tenant operating on leased premises.

The landlord sought summary judgment dismissing the lien claim and related claims, arguing it was not an “owner” under the Construction Lien Act and that the claims in contract, unjust enrichment, and quantum meruit were improperly advanced.

The court granted partial summary judgment dismissing the contract claim against the landlord and rejecting a request to pierce the corporate veil, and struck the unjust enrichment and quantum meruit claims as improperly joined under s. 55 of the Construction Lien Act.

However, the court held that factual issues remained regarding whether the landlord qualified as a statutory “owner” and whether the lien was timely preserved.

The action was therefore referred to a master for determination of the remaining construction lien issues.

The debtor filed a proposal under the Bankruptcy and Insolvency Act.

At the first meeting of creditors, the proposal trustee allowed several disputed creditors to vote, and the proposal was overwhelmingly defeated, resulting in a deemed assignment in bankruptcy.

The debtor appealed the trustee's decision, arguing the disputed creditors' claims should have been expunged due to unliquidated damages claims and equitable set-off.

The court dismissed the motion, finding the trustee correctly allowed the votes based on the record, and noted that the proposal would have been defeated even without the disputed votes.

The respondents in the main application brought motions to disqualify the applicants' solicitor and for security for costs, but withdrew them shortly before the return date.

The parties appeared to argue costs.

The court found no basis for the disqualification motion and awarded partial indemnity costs to the applicants.

For the security for costs motion, the court awarded costs incurred after the date a related Michigan action was dismissed, as the respondents delayed in withdrawing the motion.

The court fixed the applicants' total costs for both motions at $12,500 on an all-inclusive basis.

The court issued an addendum to a previous decision regarding a motion for directions.

The court received a letter from the respondent seeking clarification and providing a new mailing and email address.

The court directed that future service upon the respondent may be made by ordinary mail at both his previous address of service and his newly provided address.

The defendant real estate brokerage sought leave to appeal to the Divisional Court from an order dismissing its motion for summary judgment.

The underlying motion argued that the plaintiff's negligent misrepresentation claims regarding suspected mortgage frauds were statute-barred.

The motion judge had found a genuine issue for trial regarding when the plaintiff reasonably discovered the claims against the listing agent.

The Superior Court dismissed the application for leave to appeal, finding no good reason to doubt the correctness of the motion judge's decision and concluding that the discoverability issue required a trial.

The moving party sought directions on how to reopen a dismissed civil action based on fresh evidence allegedly undermining trial credibility findings in an employment placement fraud dispute.

After his appeal had already been dismissed, he relied on rule 59.06(2) of the Rules of Civil Procedure and tendered a broadcast said to show the respondents making representations inconsistent with their trial evidence.

The court held that the rationale of rule 59.06(2)(a) survives the dismissal of an appeal because the rule addresses orders later shown to be wrong due to fraud or subsequently discovered facts, rather than reversible trial error.

The motion to introduce new evidence had to be brought in the Superior Court, but not necessarily before the original trial judge.

Service was validated against one respondent who had notice but failed to respond in writing.

In a civil dispute concerning the origin of perennial rye grass and damages related to a golf course, the court assumed case management of the proceeding.

The judge ordered that all future motions be brought before the same judge or with that judge’s consent.

A litigation timetable was imposed requiring expert reports on the grass origin and damages issues, mediation, a meeting of experts with a joint report identifying agreed and disputed issues, and a final trial management conference.

The court also directed that the third party action be tried together with the main action.

The plaintiff law firm brought two actions against the defendants for unpaid legal accounts.

The defendants pleaded equitable set-off, alleging they were overcharged on previously paid accounts.

The plaintiff brought a motion under Rule 21.01(1)(a) to strike the equitable set-off defence, arguing it was statute-barred by the one-year limitation period in the Solicitors Act.

The court dismissed the motion, finding that material facts were in dispute regarding whether the accounts were interim or final, whether the presumption of acceptance by payment was rebutted, and whether special circumstances existed.

The court also noted that equitable set-off is generally not barred by statutory limitation periods.

The contractor brought an ex parte motion to substitute a letter of credit for posted cash security under the Construction Lien Act.

The proposed letter of credit was made subject to ICC Publication 590.

The Master dismissed the motion, finding that the inclusion of the ICC Publication 590 term made the letter of credit non-equivalent to the prescribed Financial Guarantee Bond (Form 23), as it raised the potential for the issuer to refuse payment and embroil the Accountant of the Superior Court in litigation.

The moving defendant sought security for costs under Rule 56.01(1)(a) of the Rules of Civil Procedure on the basis that the plaintiff was ordinarily resident outside Ontario and had no assets within the jurisdiction.

The plaintiff opposed the motion, asserting impecuniosity and arguing that an order for security would prevent the claim from proceeding.

The court granted leave to bring the motion despite it being brought late after the action had been set down for trial.

However, the court accepted the evidence that the plaintiff lacked financial resources and would be unable to post security.

Applying the principle that meritorious claims should not be prevented from proceeding due to poverty unless plainly devoid of merit, the court dismissed the motion.

The respondents brought a motion for security for costs against the appellant.

Following the hearing of the motion, the parties were unable to resolve the issue of costs.

The Court of Appeal awarded costs of the motion to each of the moving parties on a partial indemnity basis, fixed at $7,500 each, payable by the responding party.

The respondents brought a motion for security for costs of the appeal.

The appellant argued the issue was res judicata because a pre-trial motion for security for costs had been dismissed.

The Court of Appeal rejected the res judicata argument, noting that the circumstances before and after a trial are different.

The court found that the appellant, a foreign corporation, failed to discharge its burden of proving it lacked access to funds to post security.

The motion was granted, and the appellant was ordered to post $120,000 in security for costs.

The appellants appealed the dismissal of their application.

The respondent conceded that there were no issues of res judicata or issue estoppel arising from the lower court's decision.

The Court of Appeal agreed and dismissed the appeal, noting that the appellants were pursuing similar claims in a separate action and there was no basis to continue both proceedings.

Costs of $5,000 were awarded to the respondent.

The self-represented appellants appealed the dismissal of their claim against the respondents.

The motion judge had dismissed the action as an abuse of process and for failing to disclose a reasonable cause of action.

The Court of Appeal agreed that the action was a collateral attack on an earlier proceeding.

The Court also denied the appellants' request for leave to amend their statement of claim to plead negligence and deceit, finding no viable cause of action for either.

The appeal was dismissed with costs.

The appellant law firm and the respondent client entered into a contingency fee agreement containing an arbitration clause.

A dispute arose over the fee calculation, and the appellant served a notice of arbitration.

The respondent successfully applied to the Superior Court to strike the notice on the basis that the arbitration agreement was unenforceable for public policy reasons under the Solicitors Act.

On appeal, the Court of Appeal held that the application judge did not err in assuming jurisdiction to decide the threshold issue of enforceability.

However, the Court found that the arbitration clause was enforceable, provided the arbitrator conducts the arbitration in accordance with the substantive statutory protections of the Solicitors Act, including assessing whether the fee is fair and reasonable.

The appellant appealed a motion judge's finding that the parties had reached a binding settlement agreement.

The Court of Appeal found that there was a triable issue as to whether an agreement was reached, as the appellant had insisted on personal releases from other shareholders which were never provided, and subsequent correspondence from the respondent introduced new terms such as a non-competition clause.

The appeal was allowed and the judgment below set aside.

The appellants appealed a decision preventing them from continuing their set-off claims in Ontario.

The parties had previously agreed by a consent order in New York to submit these claims to binding arbitration and dismiss the Ontario action.

The appellants failed to pursue their claims in the arbitration, citing uncollectibility.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that allowing the appellants to continue their claims in Ontario twelve years later would constitute an abuse of process.

The appellants appealed a summary judgment dismissing their action and allowing the respondent's counterclaim on a promissory note arising from a share purchase agreement.

The appellants had alleged unconscionability, economic duress, and oppression.

The Court of Appeal allowed the appeal, finding that the motion judge erred in law by deciding which competing inferences should be preferred from primary facts in evidence on a motion for summary judgment.

The court concluded there were genuine issues of material fact requiring a trial.

The Court of Appeal dismissed the appeal for oral reasons given.

Costs of the appeal were awarded to the respondent in the fixed amount of $4,000 all inclusive.