Denise Louise Bambrough

The plaintiff surety company brought a motion for default judgment against the defendants for reimbursement under an Indemnity and Security Agreement.

The defendants, who were officers and directors of a company that went into receivership, had agreed to indemnify the plaintiff for any losses arising from a Tarion Warranty Corporation Bond.

The plaintiff paid out $690,000 under the bond and incurred $194,570.67 in related expenses.

The court found that the deemed admissions from the defendants' failure to defend, combined with affidavit evidence, established liability.

The court granted default judgment for the full amount claimed, plus pre-judgment interest at the contractual rate of 18%.

The applicants, QM GP Inc. and Highpoint Environmental Services Inc., sought an initial order under the Companies' Creditors Arrangement Act and a lien regularization order.

The applicants sought protection to address acute liquidity crisis, interim financing, and relief to stabilize operations.

The court granted the initial order with certain modifications, approving interim debtor-in-possession financing, appointment of a monitor, administration and directors' charges, and a lien regularization order.

The court also granted a temporary stay on performance bond calls and certain indemnity obligations, with the Kingsdale Letter of Credit issue deferred to the comeback hearing.

The plaintiff, 9357-1578 Quebec Inc., brought a motion seeking the production of unredacted settlement agreements and related payment documents from a global settlement involving a transit construction project.

The plaintiff, as assignee of a subcontractor's delay claims, argued the redacted settlement amounts were relevant because the defendants had pleaded that any entitlement to delay costs was contingent on funds received from the project owner.

The court found that the plaintiff failed to establish on the evidentiary record that the redacted information was relevant to the issues in the actions.

Consequently, the motion was dismissed without prejudice to the plaintiff's right to renew the motion after examinations for discovery.

Zurich Insurance Company Ltd. moved for a declaration that an Assignment Agreement between Mometal Structures Inc. and 9357-1578 Quebec Inc. was null and void, and for dismissal of three related actions as an abuse of process.

The court found that the Assignment Agreement was not precluded by the subcontract, was not a bare assignment of a cause of action, and that 9357 was not required to immediately disclose the Assignment Agreement.

Zurich's motion was dismissed.

Following an appeal regarding reduced security under the Construction Lien Act, the court issued a costs endorsement.

The appellant was awarded $7,000 in partial indemnity costs for a successful stay motion.

The respondent, having been successful on the main appeal, was awarded $15,000 in partial indemnity costs.

The appellant contractor appealed a motion judge's order vacating its construction lien upon the respondent owner posting security in an amount significantly less than the lien claim.

The appellant argued the motion judge erred by resolving complex factual issues regarding unapproved change orders and an extended duration claim on a summary motion under s. 44(2) of the Construction Lien Act.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the law by reducing security only where the evidence failed to establish a reasonable basis for the amounts claimed, though it varied the order to correct a conceded mathematical error.

The appellant brought a motion to stay an order that permitted the respondent to vacate a construction lien by posting security for only half the claimed amount, pending an appeal.

The respondent argued the order was interlocutory and unappealable under the Construction Lien Act.

The Divisional Court held that an order reducing security for a lien is a final order because it alters the substantive rights of the lien claimant.

Applying the RJR-MacDonald test, the court found a serious issue to be tried, irreparable harm due to the loss of security, and that the balance of convenience favoured the appellant.

The motion for a stay was granted.

The moving party, a condominium corporation, sought an order under s. 44(2) of the Construction Lien Act to vacate a construction lien registered by the respondent contractor upon posting security in an amount significantly less than the $2,744,377 claimed.

The dispute arose from a fixed-price contract for condominium renovations where the scope of work expanded, leading to unapproved change orders and an extended duration claim.

The court reviewed the evidence and found that while many factual disputes required a trial, certain portions of the lien claim, including specific unapproved change orders and most of the extended duration claim, lacked a proper evidentiary foundation.

The court ordered the lien vacated upon the posting of security reduced by $1,181,833.79 plus HST, along with $50,000 for costs.

The appellants brought two companion libel actions arising from an article in a corporate newsletter that was posted on a website.

The respondents, Shaw Satellite G.P. and Bell Expressvu Limited Partnership, successfully moved for summary judgment, and the actions against them were dismissed.

The appellants appealed, arguing the motions judge erred by failing to draw an adverse inference from refusals given on cross-examinations.

The Court of Appeal dismissed the appeals, finding it was open to the motions judge to decline to draw an adverse inference based on the record.

Following the granting of summary judgment dismissing libel actions against certain defendants, the court reconsidered the appropriate costs award.

The defendants argued that an early offer to settle should justify full or substantial indemnity costs after the plaintiffs refused the offer and ultimately lost on summary judgment.

The court held that the offer did not trigger Rule 49 cost consequences because it expired before the hearing, but it could still be considered under the court’s discretion under s. 131 of the Courts of Justice Act and Rule 57.01.

The court found no reprehensible or unreasonable conduct warranting full or substantial indemnity costs but concluded the early offer should have prompted a careful reassessment of the claim.

The costs award was therefore increased from $25,000 to $35,000.

Following the dismissal of defendants’ summary judgment motions and related motions to set aside an Anton Piller order, the court addressed the issue of costs.

The defendants had argued the plaintiff’s action was barred by limitation periods under s. 18(5) of the Radiocommunication Act and the Ontario Limitations Act and sought dismissal on summary judgment.

The court held that the motions were unreasonable given the extensive factual disputes, credibility issues, and evidentiary record requiring trial under the “full appreciation test” articulated in Combined Air Mechanical Services Inc. v. Flesch.

The defendants also unsuccessfully sought to challenge the Anton Piller order.

Costs were therefore awarded to the plaintiff on a substantial‑indemnity basis.

The defendants brought motions to set aside an Anton Piller order and to exclude evidence obtained under it, and also sought summary judgment dismissing the action on limitation grounds.

The action alleged an unauthorized SMATV scheme distributing encrypted satellite television programming to hundreds of tenants using residential subscriber accounts, contrary to the Radiocommunication Act, contract, and tort principles.

The court held that the plaintiff established a strong prima facie case and that the Anton Piller order was properly granted, finding no failure of full and frank disclosure.

The court also found that complex factual disputes, credibility issues, and allegations of fraudulent concealment prevented determination of limitation defences on summary judgment.

Both the motions to set aside the Anton Piller order and the motions for summary judgment were dismissed.

The appellants appealed their sentences of four months and two months imprisonment for civil contempt, which arose from their refusal to comply with a Second Anton Piller order.

The appellants introduced fresh evidence demonstrating that they had purged their contempt to the extent possible and expressed remorse.

As the respondents did not oppose the appeal, the Court of Appeal allowed the appeal, varying the first appellant's sentence to time served and vacating the second appellant's sentence.

The appellant appealed an order dismissing its application for a declaration interpreting provisions of the Real Estate and Business Brokers Act, 2002 regarding the registration status of a broker or salesperson no longer employed by a brokerage.

The Court of Appeal agreed with the motions judge that there was no live dispute or lis between the parties, as the specific broker's registration had been revoked.

The appeal was dismissed, and costs were awarded to the respondent.

The moving parties sought leave to appeal an order dismissing their motion to compel the responding parties to deliver a further and better Affidavit of Documents.

The motion judge had found no need for the order because the moving parties' lawyers already had access to the documents through a related proceeding involving the same responding parties.

The Divisional Court dismissed the motion for leave to appeal, finding the motion judge's decision was a practical solution to a unique factual matrix and did not raise matters of general or public importance.

The plaintiff sought leave to appeal an order dismissing its motion to compel the defendant to deliver a further and better Affidavit of Documents.

The plaintiff argued the order conflicted with case law and misapprehended the nature of Anton Piller orders.

The Divisional Court dismissed the motion, finding the motion judge's decision was discretionary, turned on the specific facts of the case, and did not involve matters of general public importance.

The court noted the plaintiff already had access to the documents in question and was arguably in a better position to list them.

The respondents obtained an Anton Piller order and subsequent orders requiring the appellant to allow access to his premises to re-image computer hard drives.

The motion judge found the appellant in contempt for failing to comply with these orders and struck his statements of defence for failing to pay costs.

The Court of Appeal allowed the appeal, finding that the motion judge failed to properly apply the three-pronged test for civil contempt, including the requirement for clear and unequivocal orders and proof beyond a reasonable doubt.

The Court also set aside the order striking the defences, holding that the motion judge improperly reversed the onus and failed to give the appellant an opportunity to cure his default.