Daniel J. MacKeigan

The plaintiff subcontractor brought a motion for leave to issue an amended Statement of Claim, an order for production of documents, and examinations for discovery in a construction lien action.

The defendant ABB brought a cross-motion for leave to seek security for costs.

The court granted the plaintiff's motion for production and discovery, finding that the plaintiff's claim went beyond a typical lien action by alleging direct contractual undertakings by ABB.

The court dismissed ABB's cross-motion for security for costs, finding insufficient evidence that the plaintiff lacked assets.

The plaintiffs sought costs after successfully opposing an interlocutory motion by the defendants seeking to stay the action and refer the dispute to arbitration.

Both parties filed extensive materials and the motion occupied most of a court day.

Applying the principles governing costs under Rule 57.01(1) of the Rules of Civil Procedure and the guidance in Boucher v. Public Accountants Council for the Province of Ontario, the court considered the need for a fair and reasonable costs award proportionate to the proceeding.

Given that the plaintiffs were completely successful on a contested and significant motion, the court awarded costs on a partial indemnity basis.

Costs were fixed at $17,750 inclusive of disbursements and HST.

Franchisees commenced an action seeking rescission of a franchise agreement and related relief under the Arthur Wishart Act (Franchise Disclosure), 2000, along with damages for negligent misrepresentation.

The defendants moved to stay the proceeding and refer the dispute to arbitration pursuant to an arbitration clause in the franchise agreement.

The court held that several defendants were not parties to the arbitration agreement and therefore could not invoke the stay provisions under s. 7(1) of the Arbitration Act, 1991.

Given the presence of non‑signatory defendants and the risk of delay, duplication of resources, and inconsistent findings, the court declined to order a partial stay.

The motion to stay the action in favour of arbitration was dismissed.

Following a motion concerning better particulars, striking the statement of claim, and transfer of venue, the defendant sought partial indemnity costs of $8,000–$10,000.

The court noted the defendant’s primary success was obtaining a transfer of the proceeding to London but found the motion was premature and that several claims for relief were rejected.

The court also observed that the plaintiff’s pleading unnecessarily complicated the proceeding with multiple causes of action.

Concluding that both parties achieved limited success and lost something through the motion, the court determined that fairness required each party to bear their own costs.

The defendant brought a motion to strike the plaintiff’s statement of claim or compel further and better particulars, and sought transfer of the action from Kitchener to London.

The court held that pleadings should contain concise material facts rather than evidence and that motions to strike should only succeed in the clearest of cases.

Several paragraphs of the statement of claim were struck where they duplicated issues in a related London action or pleaded matters involving parties not before the court.

Other allegations were permitted to stand, with leave granted to amend certain pleadings to clarify material facts.

The action was ordered transferred to London so that related proceedings concerning the same property dispute could be managed together.

The appellants appealed the dismissal of their motion to stay proceedings based on a forum selection clause designating British Columbia for arbitration.

The Court of Appeal found that the motion judge erred by failing to apply the 'strong cause' test from Pompey v. Ecu-Line N.V. However, exercising its own discretion under s. 106 of the Courts of Justice Act, the Court dismissed the appeal.

The Court held that due to the appellants' two-year delay in bringing the motion and the significant steps already taken in the Ontario litigation, it would be unjust to require the respondent to start afresh in British Columbia.

The appellant franchisors appealed a trial judgment granting the respondent franchisees rescission of their franchise agreement and damages under the Arthur Wishart Act.

The franchisors argued they had substantively complied with disclosure requirements by providing information piecemeal over several months.

The Court of Appeal dismissed the appeal, holding that the Act strictly requires disclosure in a single document delivered at one time.

The Court also found that the franchisees did not affirm the contract by continuing to operate the business briefly to mitigate losses after serving the notice of rescission, as statutory rescission operates differently from equitable rescission.