Colin Campbell

This is a costs decision following a trial of an issue in a construction lien action.

The Torgerson Defendants sought substantial indemnity costs from Bellsam Contracting Limited.

The court found the Torgerson Defendants' overall costs claim excessive and disproportionate, particularly given the limited scope of the trial of an issue.

While acknowledging the Torgerson Defendants' success and their beating an offer to settle, the court significantly reduced the claimed costs, fixing them at $287,500 inclusive of HST and disbursements, payable by Bellsam.

The decision also addressed the recoverability of eDiscovery specialist fees.

The plaintiff contractor and defendant owners disputed which of two quotes formed the basis of their construction contract for a medical clinic build-out.

The court held that the plaintiff's December 2018 quote constituted a valid offer that was accepted by the defendants through an agent who had ostensible authority to bind the plaintiff.

The court found that the subsequent January 2019 quote was never accepted and lacked consideration, and therefore did not amend the contract.

The court also determined that the contract was solely between the plaintiff and the defendants' corporate entity, not the individual defendants.

The Licence Appeal Tribunal sought leave to intervene in an appeal launched by Birani Homes Limited against a decision directing Tarion Warranty Corporation to pay $300,000 for home foundation and wall replacement.

Birani opposed the intervention, citing concerns about duplication of submissions, lack of unique expertise, and potential prejudice, particularly regarding a reasonable apprehension of bias.

Tarion consented to the intervention.

The court granted the Tribunal intervenor status, limiting its participation to issues concerning the standard of review, the Tribunal's jurisdiction under the Ontario New Home Warranties Plan Act (ONHWPA) regarding year-end and major structural defect claims, and its Rules of Practice and Procedure on adding parties and disclosure.

Intervention on the issue of reasonable apprehension of bias was denied to prevent the Tribunal from appearing to defend its own decision.

The Appellant's father purchased a condominium unit and signed a Condominium Home Addendum containing a delayed occupancy warranty.

Occupancy was delayed by 88 days, entitling the purchaser to $7,500 in compensation.

The father directed the vendor to transfer title to the Appellant on closing.

The Appellant subsequently sold the unit and then submitted a claim to Tarion for the delayed occupancy compensation.

The Licence Appeal Tribunal held that the Appellant was not entitled to the compensation, finding that if the warranty was personal, it required a formal assignment from the father, which was absent; if it ran with the land, the claim should have been made while she owned the property or by the subsequent owner.

The appeal was dismissed.

The applicant brought an urgent application for physician-assisted death and sought confidentiality orders, including a publication ban and sealing order, without giving notice to the media.

The court balanced the open court principle with the applicant's dire medical circumstances and privacy interests.

The court granted an interim publication ban and sealing order, authorized the use of pseudonyms, and directed the applicant to provide notice to the media, giving the media 60 days to bring a motion to challenge the orders.

The applicant municipality sought leave to appeal a decision of the Ontario Municipal Board regarding development projects in a mixed industrial-residential area.

The Board had approved predominantly residential developments, rejecting the municipality's policy requiring a minimum non-residential component to preserve employment lands.

The Divisional Court granted leave to appeal, finding that the Board's failure to properly consider the Planning Act, Provincial Policy Statements, and the Official Plan raised questions of law of sufficient importance, and there was reason to doubt the correctness of the Board's decision.

The complainant, Martin Entrop, and the Ontario Human Rights Commission challenged Imperial Oil's Alcohol and Drug Policy, alleging it discriminated on the basis of handicap.

The Board of Inquiry found that drug abuse and dependence constitute a handicap under the Human Rights Code.

The Board held that the policy's requirements for mandatory disclosure of past substance abuse, reassignment, and onerous reinstatement conditions were overly broad and unlawful.

Furthermore, the Board ruled that pre-employment and random drug testing, as well as random alcohol testing, were unlawful because the employer failed to prove that positive tests correlate with actual impairment on the job, thus failing to establish a bona fide occupational requirement under section 17 of the Code.

The complainant, a senior operator in a safety-sensitive position, disclosed a past alcohol problem pursuant to the employer's new Alcohol and Drug Policy.

Despite having been abstinent for over seven years, he was reassigned to a lower position and later reinstated subject to rigorous, unannounced testing and controls.

The Board of Inquiry found that past alcoholism constitutes a handicap under the Human Rights Code.

The Board held that the employer's mandatory self-disclosure, automatic reassignment, and excessive reinstatement controls amounted to direct discrimination.

While freedom from alcohol impairment is a bona fide occupational requirement for safety-sensitive jobs, the employer failed to prove that the complainant was incapable of performing his duties or that the intrusive measures were reasonably necessary.

The employer also failed to meet its duty to accommodate, as less drastic means of assessment, such as supervisory monitoring, were available.

The complainant, who had previously been reassigned due to past alcohol dependency, sought to expand the scope of his human rights complaint to challenge the respondent's random drug testing policy.

The complainant argued he was at risk of discipline because he took a prescription medication containing codeine for a knee injury.

The Board of Inquiry granted the motion to expand the hearing's scope, finding the complainant had standing to challenge the policy.

The Board also allowed an amendment to the complaint to allege that the distribution of the policy violated s. 13 of the Human Rights Code.

The Ontario Human Rights Commission sought production of documents relating to the respondent's Alcohol and Drug Policy as a whole, while the respondent argued for a phased approach focusing first on the individual complainant.

The Board of Inquiry adopted a phased approach, ordering production of documents relating only to the individual complainant at this stage.

The Canadian Civil Liberties Association sought intervener status as amicus curiae.

The Board granted the CCLA intervener status to make submissions at the conclusion of the case, noting the public interest nature of human rights inquiries.

The appellant suffered a neck injury and was rendered a quadriplegic after participating in a dangerous tubing competition at the respondent's ski resort while visibly intoxicated.

The appellant had signed an entry and waiver form without reading it.

The Supreme Court of Canada held that the resort, as the promoter of a dangerous sport, owed a duty of care to take all reasonable steps to prevent a visibly intoxicated person from participating.

The resort failed to discharge this duty.

The Court also found that the appellant did not voluntarily assume the legal risk, and the waiver did not relieve the resort of liability because it was not drawn to his attention.

The trial judge's finding of 25% contributory negligence was upheld.

The appellant was the beneficiary of a life insurance policy on an author who committed suicide.

The policy was backdated to January 23, 1968, to secure a lower premium, but was delivered on February 28, 1968.

The insured committed suicide on January 31, 1970.

The insurer denied the claim, relying on a two-year self-destruction clause, arguing the effective date was the date of delivery.

The Supreme Court of Canada held that the policy was entirely structured around the backdated date of January 23, 1968, making it the effective date for all purposes, including the self-destruction clause.

The appeal was allowed and the trial judgment in favour of the appellant was restored.