David Yehudy Dwoskin

The plaintiffs in the Dewan Action brought a motion to adjourn their trial, scheduled for March 24, 2014, until after the completion of an ongoing trial in a related action (the CCC 396 Action).

The adjournment was requested because the plaintiffs intended to call an expert witness whose testimony in the CCC 396 Action had not yet been completed due to repeated delays caused by defence counsel's health issues.

The court granted the adjournment, noting that previous orders indicated the CCC 396 Action should be completed first, as its outcome would impact the Dewan Action.

The court also ordered that all summonses issued for the original trial date remain valid and subsequently set new trial dates for both actions during a case conference.

The defendants brought a motion seeking a reduction of security paid into court under the Construction Lien Act.

Although the moving party sought a substantial reduction from approximately $2.69 million to about $347,000, the court found that the alleged over‑security was not demonstrated to that extent and reduced the security only to $1,931,227.

The motion therefore resulted in partial success for the defendants.

In determining costs, the court considered s. 86 of the Construction Lien Act together with Rule 57 of the Rules of Civil Procedure and noted the parties had collectively incurred over $120,000 in motion costs.

The court held that while the moving party was reasonably successful and entitled to costs, the scale should remain partial indemnity and fixed costs at $15,000 payable by the plaintiff.

The defendant owner brought a motion under s. 44(5) of the Construction Lien Act seeking to reduce the amount of security posted to vacate a construction lien.

The lien claimant had registered a lien exceeding $2.6 million, largely based on delay-related claims including additional labour, overtime, and extended duration costs.

The court held that security may be reduced where it is demonstrated that the maximum possible recovery under the lien is less than the registered amount, applying a test analogous to summary judgment but without determining contested factual disputes.

The court found portions of the delay claim either non‑lienable or clearly overstated and recalculated the amounts that could plausibly be recovered as lienable claims.

The security was reduced accordingly while preserving sufficient protection for potentially valid lien components.

Multiple motions arose in more than 45 construction lien actions concerning five related solar farm projects across Eastern Ontario.

The plaintiff sought transfer and consolidation of numerous lien actions, while the general contractor sought reduction of security posted to vacate liens under the Construction Lien Act.

The court declined full consolidation, instead designating “main actions” for each project and implementing procedural directions to coordinate litigation efficiently while avoiding administrative burdens associated with transferring and merging dozens of proceedings.

The court partially granted the motion to reduce security where duplicate or inflated lien claims were conceded, while adjourning the balance pending further negotiations and analysis of holdback exposure and overlapping claims.

The plaintiffs and the court-appointed Administrator brought motions to set aside a Registrar's order dismissing the action.

The defendant had obtained the dismissal order ex parte on December 31, 2012, relying on a prior endorsement that required the action to be set down by December 29, 2012.

However, the defendant failed to disclose to the Registrar that the court had subsequently extended the deadline to February 28, 2013.

The court found that the defendant's failure to disclose the extension constituted a material misstatement and that the Registrar lacked jurisdiction to dismiss the action.

The dismissal order was set aside, and substantial indemnity costs were awarded to the moving parties.

During a telephone case conference, the court addressed scheduling and procedural matters relating to an upcoming motion and cross‑motion between multiple plaintiffs and a defendant acting in trust.

The court established timelines for confirming counsel’s availability, serving the defendant’s cross‑motion materials, and exchanging factums.

It also scheduled tentative hearing dates for the motion and cross‑motion and directed that argument be completed within one day.

The endorsement functions purely as a case management order facilitating the efficient progression of the litigation.

The defendant lawyer brought a summary judgment motion dismissing a negligence action as statute‑barred under the Limitations Act, 2002.

The plaintiffs alleged they intended to acquire a 50 percent ownership interest in a corporation but instead obtained only 49 percent, and argued the limitation period was delayed because they believed the lawyer would resolve the issue.

The court held the claim was discovered when the plaintiff became aware of the altered share structure and contemplated legal action, as evidenced by contemporaneous emails.

Statements discouraging litigation or attempts to resolve the matter did not prevent the limitation period from running.

The action commenced more than two years later was therefore barred.

The plaintiffs, initially self-represented by a solicitor acting for himself and his company, failed to respond to a Status Notice, resulting in an administrative dismissal of their action for unpaid loans.

The plaintiffs brought a motion to set aside the dismissal order.

The court applied the holistic test for setting aside a Registrar's dismissal, finding that despite the plaintiffs' procedural failures and delay, the merits of the action (unpaid loans acknowledged by the defendants) and the lack of prejudice to the defendants justified setting aside the order.

The court also vacated a previous security for costs order and awarded costs to the plaintiffs.

The plaintiffs brought a motion seeking leave to amend their statement of claim, approval of a discovery plan, and an order permitting inspection of condominium units for expert examination under the Rules of Civil Procedure.

The court adjourned the request to amend the statement of claim to permit further revisions.

Although Rule 29.1 obligates parties to agree upon a discovery plan without court intervention, the court imposed a discovery plan due to longstanding acrimony, extensive delay, and the absence of completed discoveries in an action commenced in 2001.

The court also granted the plaintiffs authority under Rule 32.01 to have an expert inspect specified condominium units for by-law contraventions and changes of use.

No costs were awarded due to both parties’ failure to cooperate in establishing a discovery plan.

The plaintiff real estate brokerage brought an action against the vendor, its principal, and the purchaser for an unpaid real estate commission.

The vendor and purchaser had entered into an agreement of purchase and sale during the listing period, which was later revived and closed under a different corporate purchaser name at the vendor's insistence to avoid paying the commission.

The court found that the commission was earned and payable under the listing agreement.

The court also held the vendor's principal and the corporate purchaser liable for intentional interference with contractual relations for their bad faith conduct in attempting to circumvent the commission.

The respondents were completely successful on an appeal, an application for judicial review, and an application to set aside an arbitrator's decision.

They sought partial indemnity costs of $22,651 plus disbursements and HST.

The applicants argued the amount was disproportionate and opposed joint and several liability.

The court fixed costs at $20,000 plus $1,000 in disbursements plus HST, payable jointly and severally by the applicants, noting the complexity of the proceedings and the arbitrator's finding that the applicants had committed the tort of deceit together.

The applicants sought to appeal and judicially review an arbitrator's decision finding them personally liable for the tort of deceit in a real estate venture.

They argued the arbitrator lacked jurisdiction over them personally as they had not signed the arbitration agreement in their personal capacities.

The Divisional Court dismissed the applications, finding the applicants had agreed to arbitration by their conduct, including obtaining a prior court order referring the claims to arbitration, and had waived any jurisdictional objections by participating without complaint.

The court also held that judicial review is unavailable for private commercial arbitrations and that the arbitration agreement's 'final and binding' clause precluded any appeal.

The applicant trade union sought a declaration that Bruno Facchin Interiors Ltd. was bound by a collective agreement as a result of a sale of business from R & B Painting Ltd., or alternatively, that the two companies were related employers under common control and direction.

The Board found that there was no sale of business, as R & B's business had been sold to a third party that subsequently went bankrupt.

While the Board found that the two companies were related and under common control, it declined to exercise its discretion to issue a single employer declaration.

The Board concluded that the principal had started a new, distinct business and that the union's bargaining rights attached to the original business, not to the principal personally.

The application was dismissed, with one Board Member dissenting.