Daniel Alexander Boan

The plaintiff, a tree service company, brought construction lien actions against the defendants, a joint venture consortium, for unpaid work and extras related to clearing and grubbing for the Highway 407 East extension project.

The defendants counterclaimed for damages incurred to complete the work after terminating the subcontract due to the plaintiff's non-performance.

The court found that the written subcontract governed and required the plaintiff to clear the entire right-of-way for a lump sum, rejecting the plaintiff's argument that the scope was limited to a smaller area.

The court upheld the defendants' termination of the subcontract for non-performance.

The plaintiff was awarded $177,437.53 for unpaid contract work, holdback, and certain approved extras, while its claims for loss of profit, quantum meruit, and punitive damages were dismissed.

The defendants were awarded $411,244.81 on their counterclaim for the costs of retaining replacement subcontractors.

The plaintiff brought an oral motion during trial to strike portions of an affidavit and its exhibits, primarily on grounds of hearsay, inadmissibility as business records, opinion/legal conclusion, prior consistent statements, and non-compliance with discovery rules.

The court largely dismissed the motion, finding most documents admissible as business records under section 35 of the Evidence Act.

It ruled that diary notes were not inadmissible prior consistent statements and granted leave for information not provided within 60 days due to lack of prejudice.

However, the court struck one speculative sentence from the affidavit and ruled that numerous photographs were not admissible as business records.

The court fixed costs following a successful motion by Southside Construction and the Architects to stay the City of Windsor's claims due to abuse of process.

The City had failed to immediately disclose complete terms of settlement agreements with third-party subtrades, which fundamentally altered the litigation landscape.

The court found the City's conduct egregious and awarded substantial indemnity costs to Southside and the Architects, emphasizing that such an elevated scale was appropriate to express judicial disapproval and deter similar future behaviour, though not egregious enough for full indemnity costs.

The City of Windsor entered into confidential settlement agreements with eight third-party subcontractors, which included indemnities and assumption of liabilities, fundamentally altering the litigation landscape.

The City failed to immediately and fully disclose these agreements to the general contractor (Southside Construction) and the architects, despite multiple opportunities and court orders.

The court found this non-disclosure constituted an abuse of process, as it created a circularity in claims and prejudiced the non-settling parties by forcing them to incur significant costs to uncover the true nature of the agreements.

This endorsement addresses several refusals arising from examinations for discovery between the Toronto Transit Commission (TTC) and two of the Designers, WSP Canada Inc. and IBI Group Architects (Canada) Inc., in a complex construction litigation involving the Steeles West Subway Station project.

The court applied rules of discovery, relevance, and proportionality to compel answers or further productions regarding litigation privilege, evidence supporting delay allegations, reasons for not replacing a contractor, and clarification of legal positions on specifications.

The City of Hamilton commenced an action against the architect and general contractor of an arena project for construction defects.

After years of inaction, the action was dismissed for delay by the registrar when the City's counsel inadvertently failed to attend a status hearing.

The City's motion to set aside the dismissal was denied by the motion judge.

On appeal, the Court of Appeal upheld the dismissal, finding that the 15-year delay was inordinately long, the critical five-and-a-half-year period of inaction was unexplained, and the delay caused actual prejudice to the defendants due to the unavailability and faded memories of key witnesses.

The Town of Newmarket appealed a decision declaring it breached its Contract A obligations to the respondent contractor by accepting a non-compliant bid from another bidder.

The accepted bid contained a discrepancy between the stipulated price, the GST, and the total cost of the work.

The Court of Appeal upheld the application judge's finding that the price was uncertain, rendering the bid non-compliant and incapable of acceptance.

The Court distinguished previous case law where price discrepancies were mere clerical errors, finding that in this case, the intended price was unclear on the face of the bid.

The appeal was dismissed.