Connor Marino

The plaintiffs and Pensio defendants brought undertakings and refusals motions involving over 140 questions arising from examinations for discovery.

The motions concerned a dispute over a $1,000,000 rental income program fee paid by the plaintiffs to a lawyer's trust account.

The plaintiffs alleged fraudulent misrepresentation, breach of fiduciary duty, and unjust enrichment.

The defendants asserted solicitor-client privilege and litigation privilege over various communications and documents.

The court addressed numerous discovery disputes, balancing the principles of relevance, proportionality, and privilege, and made determinations on approximately 140 disputed questions across multiple examinations.

The applicant, 961838 Ontario Ltd. o/a MacGyver Autobody & Collision, sought a declaration of its right to a five-year renewal of its commercial lease with the respondents.

The respondents argued the applicant was in default and not entitled to renewal.

The court found that the applicant was not in default regarding signage or rent increase, and, in any event, would be entitled to relief from forfeiture.

The applicant was granted the right to a five-year renewal under the lease.

The defendant, Corey Sean Libfeld, brought a motion seeking a stay of the action or, alternatively, to prohibit the plaintiff, Pittsburgh Steel Group (PSG), from adducing certain evidence on the basis that PSG’s principal, Zoran Radonjic, violated the deemed undertaking rule by filing documents obtained in discovery with a complaint to the Professional Engineers Ontario (PEO).

The court found a violation of the rule but declined to stay the action, instead prohibiting PSG from adducing specific evidence and ordering costs as a deterrent.

The parties reached an agreement on the calculation of prejudgment interest and costs following a previous court ruling.

Prejudgment interest was determined to be $51,619.51, and costs were agreed upon at $128,129.17.

The endorsement details the agreed terms, including the impact of Rule 49 offers to settle on the breakdown of partial and substantial indemnity costs.

The court ordered that the approved judgment reflecting these terms shall be issued.

Atlas Dewatering Corporation sought prejudgment interest at an average rate of 1.8% from the commencement of proceedings, while Harvie Construction Inc. argued for the presumptive rate of 0.8%.

The court, applying section 130 of the Courts of Justice Act and principles from Graham v. Rourke, found that the 1% difference between the average rate and the presumptive rate was not significant enough to warrant deviation from the presumptive rate.

The court ordered the prejudgment interest rate to be 0.8%.

The defendants brought a motion for an order requiring the plaintiff to post security for costs on a pay-as-you-go basis, asserting the plaintiff was ordinarily resident outside Ontario.

The court found persuasive evidence supporting the defendants' contention, noting the plaintiff's weak rebuttal evidence and refusal to be examined.

Considering the serious allegations of collusion, fraud, deceit, and conspiracy made by the plaintiff against the defendants, and the potential for substantial indemnity costs if the claims were dismissed, the court determined it would not be unjust to order security for costs.

The motion was granted, and the plaintiff was ordered to post security for the defendants' partial indemnity costs.

This case involved a contract dispute between a general contractor (Harvie Construction Inc.) and its dewatering subcontractor (Atlas Dewatering Corporation) concerning unpaid invoices for a municipal reconstruction project.

Atlas claimed breach of contract and unjust enrichment for base contract work and additional services.

Harvie asserted a fixed-price contract, a "pay when paid" arrangement for extras, and challenged the validity of Atlas's construction lien.

The court found Atlas's lien properly preserved, dismissed Harvie's counterclaim, and determined the contract terms were reflected in Atlas's "Second Quote," which allowed for additional charges beyond the lump sum.

The court rejected the "pay when paid" defense, finding it unreliable and inconsistent with the parties' conduct.

Atlas was awarded judgment for the outstanding balance, including approved and disputed additional work.

The defendant brought a motion to compel the plaintiff to produce backup documents for all invoices delivered since 2017, prior to examinations for discovery.

The plaintiff sued for unpaid invoices, and the defendant counterclaimed for alleged overbilling on past invoices.

The court dismissed the motion, finding the request overbroad because it included invoices based on pre-approved prices rather than time and materials.

The court also found the request disproportionate under Rule 29.2.03, as the time and expense required to produce the documents outweighed the likely benefit, especially given the $50,000 value of the counterclaim.

Nieltech Services Ltd., a subcontractor, brought a motion for summary judgment against Rosa Nudo-Perras, a director of Wasero Construction (1991) Ltd., for breach of trust under the Construction Act.

Nieltech claimed $45,757.26 for unpaid services.

Wasero and another director had declared bankruptcy, and Nudo failed to provide a proper accounting of trust funds.

The court found that Nieltech discharged its onus to prove a trust and non-payment, and Nudo failed to discharge her onus to account for the funds.

The court determined there was no genuine issue for trial and granted summary judgment against Nudo, finding her personally liable for the breach of trust.