David Richard Rothwell

Following a construction lien trial in which the plaintiff contractor’s lien claim was dismissed and the defendants succeeded on a counterclaim for overpayment, the court addressed the issue of costs under the Construction Lien Act.

The owners sought partial indemnity costs exceeding $83,000, including a significant expert witness disbursement.

The court applied the discretionary factors under Rule 57.01 of the Rules of Civil Procedure and considered complexity, success at trial, and the parties’ conduct.

The contractor argued there had been divided success and challenged the necessity of certain legal work and disbursements, but the court rejected these submissions.

Concluding that the owners were the successful parties and that their claimed costs were reasonable within the expectations of the litigation, the court awarded partial indemnity costs with a reduction to one expert report.

An employee with approximately twelve years of service brought a wrongful dismissal action after being terminated during an alleged downturn in available work.

The employer argued that there was insufficient work and that the employee would have earned little or no income during any reasonable notice period.

The court held that the employee remained entitled to a common law wrongful dismissal remedy notwithstanding potential exemptions under the Employment Standards Act.

Applying the Bardal factors and accounting for economic conditions affecting the employer’s business, the court determined that a reasonable notice period was eight months rather than the twelve months that might otherwise apply.

The employee’s mitigation efforts, including temporary subcontract work and starting a business, were found reasonable, and damages were calculated based on eight months’ pay less mitigation income and termination pay already received.

A contractor brought a construction lien action seeking payment for renovation work performed on a residential property.

The homeowners disputed the claim and counterclaimed alleging overpayment, asserting the work was subject to a guaranteed maximum budget.

The court found no enforceable contract existed because the parties never agreed on the essential term of price.

The contractor was nevertheless entitled to compensation on a quantum meruit basis for the reasonable value of services and materials supplied.

Accepting expert quantity‑surveying evidence, the court determined the fair value of the work was less than the amount already paid, resulting in dismissal of the contractor’s claim and a small award to the homeowners on their counterclaim.

The purchaser appealed a trial decision finding that open web steel joists were not part of the structural steel included in an agreement of purchase and sale for a commercial property.

The Court of Appeal allowed the appeal, finding that the trial judge erred by relying on extraneous documents to interpret the agreement.

The Amending Agreement and the documents specifically referenced within it, including the purchase order and structural drawings, clearly included open web steel joists.

As the vendor failed to provide the joists, they breached the agreement, and the funds held in trust were ordered returned to the purchaser.

The appellants brought a fresh evidence motion as part of their appeal, seeking to introduce affidavits from two rabbis regarding the exact time the Sabbath began on February 19, 1999.

The evidence was intended to undermine the credibility of a respondent who testified that he could not have finalized a lease arrangement on that Friday afternoon due to the approaching Sabbath.

The Court of Appeal dismissed the motion, applying the Palmer test and concluding that even if the evidence were admitted, the minor discrepancy in the estimated time of the Sabbath would not reasonably be expected to have affected the trial judge's findings on credibility or the ultimate result.

The appellants appealed a trial judgment dismissing their action regarding the termination of a lease.

The trial judge found that the appellants failed to pay rent and lacked the financial ability to do so.

On appeal, the appellants argued that the respondents changed their evidence from discovery to trial without providing written notice as required by the Rules of Civil Procedure.

The Court of Appeal dismissed the appeal, finding that the change in evidence regarding the exact date of termination was immaterial to the outcome, as rent was not tendered on either date.

However, the Court reduced the respondents' costs of the appeal due to their failure to provide proper notice.

The applicants, a group of companies owned by Dondeb Inc., sought an Initial Order under the Companies' Creditors Arrangement Act (CCAA) to enable an orderly liquidation of their assets.

The application was opposed by approximately 75% of the secured creditors, who argued for individual receiverships due to a lack of confidence in the applicants' principal and the burden of CCAA administrative costs.

The court dismissed the CCAA application, finding it unlikely that a successful plan could be developed and approved by the creditors.

Instead, the court issued a Global Receivership Order, which was supported by the opposing creditors, to achieve an orderly liquidation at a lower cost.

Supplementary endorsement addressing distribution of funds held in trust following a prior decision determining entitlement between vendor and purchaser in a real estate transaction.

The court had previously invited written submissions regarding entitlement to GST included in the purchase price and the cost of steel plates allegedly lost after delivery to the job-site.

After reviewing the additional submissions, the court concluded that the purchase price under the agreement of purchase and sale was $500,000 plus GST and that GST had been properly paid.

The court also accepted that $7,500 should be deducted for the steel plates.

The court directed the trust funds to be distributed primarily to the vendor with a smaller amount to the purchasers and added a corporate purchaser nunc pro tunc as a co‑plaintiff/applicant.

A commercial dispute arose following a land purchase agreement that included a separate agreement for the purchase of custom-fabricated structural steel, with $525,000 held in trust pending verification of the steel.

The purchaser claimed entitlement to the trust funds after failing to verify the steel within the contractual period, arguing that a prior settlement had been reached and that verification could not reasonably be completed.

The court found that no binding settlement was reached during negotiations between the parties.

However, the court held that the purchaser failed to act reasonably and in good faith in attempting to complete verification, particularly by refusing a reasonable proposal to share the cost of reproducing fabrication drawings necessary for verification.

The vendor was therefore entitled to most of the trust funds, subject to a possible adjustment relating to GST and steel plate costs.

The appellants appealed a trial judgment dismissing their action to discharge a debenture registered against their land.

The trial judge had found that while the ten-year limitation period under the Limitations Act had expired, equitable considerations prevented the appellants from succeeding.

The Court of Appeal allowed the appeal, holding that the trial judge erred by deciding the case on equitable grounds that were neither pleaded nor argued.

Furthermore, the Court held that equitable considerations cannot trump the clear statutory language of sections 4 and 15 of the Limitations Act, which extinguish the right and title to land after ten years.

The debenture was ordered discharged.

The appellant, who purchased a portion of the bankrupt company's business, appealed the Trustee's disallowance of various claims totaling over $3 million.

The claims sought reimbursement of expenses and damages allegedly resulting from misrepresentations in unaudited internal financial statements provided prior to the sale.

The court upheld the Trustee's disallowance, finding that the Asset Purchase Agreement contained 'as is, where is' and entire agreement clauses, and that the claims were barred by res judicata due to prior court orders approving the sale and discharging the Chief Restructuring Officer.

The appeal was dismissed.

The appellants appealed a summary judgment dismissing their action to discharge a 1979 debenture registered against their lands, which they claimed was unenforceable due to expired limitation periods.

The motion judge had found the debenture was not statute-barred because a receiver had been appointed and its validity was determined in a prior fraudulent conveyance action.

The Court of Appeal allowed the appeal, finding the motion judge erred in her legal conclusions and that the record did not support summary judgment for either party.

The cross-motion for summary judgment was dismissed, and the matter was ordered to proceed to trial.

The appellants appealed a judgment of the Superior Court of Justice regarding a commercial lease dispute.

On consent of the parties, the Court of Appeal dismissed the appeal without costs.

The appellants appealed a Case Management Master's decision granting summary judgment for $80,000 owing on a promissory note related to the purchase of a business.

The appellants argued that the individual signatories received no consideration and claimed a right of set-off due to a separate action for breach of a non-competition agreement.

The Divisional Court dismissed the appeal, holding that the Master correctly found the individual defendants liable as guarantors and that equitable set-off is not available against a promissory note.

The respondent employer requested the Ontario Labour Relations Board to enforce a previous award, alleging the applicant union failed to distribute trust monies to employees as ordered.

The union raised a preliminary objection regarding the Board's jurisdiction.

The Board dismissed the employer's request, ruling that it lacks statutory authority to enforce its own awards.

Under section 44(11) of the Labour Relations Act, enforcement must be pursued through the Supreme Court.