Dennis Touesnard

In a civil costs decision following settlement of the main action, one defendant sought partial indemnity costs against the co-defendant for both the action and a crossclaim.

The court treated the hearing as a motion for costs and applied the principles of fairness, reasonableness, and proportionality under the Rules of Civil Procedure and s. 131(1) of the Courts of Justice Act.

The court found the responding defendant's litigation position and delayed acceptance of the offer to settle caused unnecessary continuation of the proceeding and additional preparation costs.

While not granting the full amount requested, the court awarded an all-inclusive costs amount reflecting proportionality and the parties' relative success.

The plaintiff paving contractor sued the defendant general contractor for unpaid invoices and extras on a construction project (the Archmill project).

The plaintiff had also refused to perform work on a second, unrelated project (the Burgessville project) until it was paid for the first.

The court found that the plaintiff was entitled to payment for some, but not all, of the disputed extras on the first project.

However, the court also held that the plaintiff's refusal to work on the second project constituted an anticipatory breach of contract.

The defendant was awarded damages for the extra costs incurred to complete the second project, and the court allowed the defendant to equitably set off those damages against the amount owed to the plaintiff on the first project.

The plaintiff's claim for breach of trust under the Construction Act was dismissed.

Two brothers co-owned a family cottage and entered into a co-ownership agreement without legal advice.

When the plaintiff sought to sell his share, a dispute arose over the interpretation and validity of the buy-sell provision.

The plaintiff applied to enforce the provision or alternatively for a sale under the Partition Act, while the defendant applied for rectification of the agreement to match an earlier draft.

The Superior Court of Justice found the buy-sell provision void for uncertainty as it constituted an unenforceable agreement to agree.

The court dismissed the defendant's claim for rectification, finding no evidence of fraud or equivalent conduct.

Ultimately, the court ordered the sale of the property pursuant to the Partition Act and directed the net proceeds to be divided equally.

The defendant brought a motion to stay the plaintiff's action for breach of an agreement of purchase and sale, relying on an arbitration clause in the Tarion Addendum.

The court found that while the dispute fell within the scope of the arbitration agreement, the defendant had waived its right to arbitrate by attorning to the court's jurisdiction and actively participating in the litigation for over 16 months before bringing the motion.

The motion to stay was dismissed, and the defendant was ordered to pay costs.

The plaintiff sought costs of $14,946.31 on a partial indemnity basis following a successful wrongful dismissal action.

The defendant argued the costs were excessive, asserting the net recovery fell within the Small Claims Court jurisdiction and noting the plaintiff's failure on the moral damages claim.

The court rejected the defendant's calculation involving statutory deductions, finding the claim was not within Small Claims Court jurisdiction.

Taking into account the plaintiff's lack of success on moral damages, proportionality, and indemnification, the court fixed costs at $10,000 inclusive.

The plaintiff, a 22-year employee, claimed he was constructively dismissed when his employer allegedly demoted him from Regional Sales Manager to Project Manager.

The employer maintained that the plaintiff had always functioned as a Project Manager and that no demotion occurred.

Following a trial, the court found that the employer did not breach an essential term of the employment contract and did not evince an intention to no longer be bound by it.

The court concluded that the plaintiff voluntarily resigned, and the action for wrongful dismissal was dismissed.

The plaintiff employee brought a motion for summary judgment in a wrongful dismissal action under the Simplified Procedure.

The defendant employer alleged just cause for termination based on performance and behavioural issues.

The court found no genuine issue requiring a trial regarding cause, as the employer failed to provide sufficient evidence of misconduct warranting summary dismissal, and set the reasonable notice period at 14 months.

However, because the Simplified Procedure prevented cross-examination on affidavits, the court found a genuine issue regarding mitigation of damages and the value of lost benefits, ordering a minitrial to resolve those specific issues.

Two brothers filed competing applications regarding the buy-sell provision of a cottage co-ownership agreement.

One brother sought to enforce the written agreement, while the other sought rectification based on a prior draft.

The respondent argued the matter should proceed to trial due to factual disputes.

The court determined that the matter could not be resolved on a paper record due to conflicting evidence and credibility issues regarding the drafting and execution of the agreement.

The court ordered the applications consolidated and directed them to proceed to trial.

The plaintiff brought a motion under Rule 25.11 to strike three paragraphs from the defendants' Statement of Defence in an action for negligence and defamation arising from a workplace harassment investigation.

The plaintiff argued the paragraphs were irrelevant, argumentative, speculative, and inserted merely for colour.

The court found that paragraphs 9 and 35 were relevant to the defences of justification, fair comment, and causation of damages, and declined to strike them.

However, the court struck paragraph 20, which alleged the plaintiff refused to pay the defendants' invoice, finding it irrelevant to any cause of action or defence.

The motion was granted in part.

The plaintiff brought a motion to find the defendants in contempt of an interim order requiring them to deliver up confidential information.

The former employee defendant had retained some confidential information on his personal computer and cellphone, but disclosed this fact and subsequently deleted the computer files.

The court found that while there was non-compliance, the plaintiff failed to prove beyond a reasonable doubt that the breach was intentional.

The contempt motion was dismissed, but the court ordered the defendant to delete remaining contacts from his cellphone and submit to cross-examination.

The plaintiff in a wrongful dismissal action brought a motion to strike paragraphs from the defendant's Statement of Defence that alleged cause for termination.

The plaintiff argued that the defendant had already admitted in its pleadings and on discovery that the termination was without cause.

The court granted the plaintiff leave to bring the motion despite having served a Notice of Readiness, finding that the defendant's subsequent motion regarding discovery refusals was an unexpected change in circumstances.

The court struck the impugned paragraphs, finding them irrelevant as the defendant had unequivocally pleaded that the termination was without cause and had not amended its pleadings to assert after-acquired cause.

The plaintiffs, a cable installation company and its director, sued the City of Brantford and its IT manager for defamation, intentional interference with economic relations, and abuse of public office.

The IT manager made false and malicious statements about the quality of the plaintiffs' work to a supplier and others, motivated by complaints the plaintiffs had made against him.

The court found the statements were defamatory and an abuse of public office, awarding $75,000 in general damages and $75,000 in punitive damages, but dismissed the claim for lost profits.

The individual defendants brought an urgent motion to stay the execution of a summary judgment granting the plaintiff possession of their personal residences following a corporate loan default.

The defendants argued the plaintiff should first realize on the bankrupt corporation's assets.

The court found it had inherent jurisdiction to grant a stay but declined to do so, ruling the motion was an impermissible collateral attack because the defendants failed to seek this relief during the original summary judgment motion.

The court also found the defendants failed to prove the corporate assets had sufficient value to satisfy the debt.

The motion was dismissed.

Following the plaintiff's successful resistance of a motion brought by the defendant trustees regarding a temple construction project, the plaintiff sought costs.

The plaintiff had previously offered to forego costs if the motion was withdrawn, which the trustees refused.

The court found the plaintiff's claimed costs reasonable and ordered the trustees to pay $7,182.49.

The plaintiff brought a motion for summary judgment against the defendants for vacant possession and payment under four mortgages in default.

The defendants argued that the guarantees and collateral mortgages signed by the spouses were unenforceable due to undue influence by their husbands.

The court found no genuine issue requiring a trial, noting that the spouses had received independent legal advice and signed the documents despite advice to the contrary.

The court held there was no evidence of actual or presumed undue influence.

Summary judgment was granted, ordering monetary judgments and writs of possession.

The defendants brought a motion for summary judgment to vacate a construction lien, arguing the plaintiff registered the lien more than 45 days after the contract was abandoned.

The plaintiff argued that work had merely ceased due to financing issues and the contract was never permanently abandoned.

The court found that ongoing communications between the parties suggested the contract might not have been abandoned, and the defendants failed to provide evidence from their key representative.

The court dismissed the motion, finding a genuine issue for trial regarding whether the contract was abandoned.

The plaintiff fuel supplier sued the estate of a deceased transport company operator for unpaid invoices totaling $130,313.15.

The defendant argued the debt belonged to a numbered corporation, not the deceased personally.

The court found that the deceased failed to provide adequate notice to the plaintiff that he was operating through a corporation, as required by the Business Names Act and Business Corporations Act.

The use of the words 'transport company' on a credit application was insufficient notice.

The plaintiff was granted judgment against the estate personally.

The applicant brought a motion for a Certificate of Pending Litigation regarding a rural property formerly owned by his parents.

The applicant alleged that the property was transferred to the respondent's corporation to be held in trust for the applicant, who purchased it at half its market value from his parents but could not obtain financing.

The respondent claimed the property was purchased outright with an expectation the applicant would buy it back later.

The court found a triable issue regarding the applicant's beneficial interest and held that damages would be inadequate given the property's long history in the applicant's family.

The motion for a Certificate of Pending Litigation was granted on terms.

The defendant bankruptcy trustee brought a motion for summary judgment to dismiss the plaintiff's action for conversion and negligence on the basis that the two-year limitation period had expired.

The plaintiff claimed a half-interest in a boat that her bankrupt husband had purportedly gifted to their son, which the trustee subsequently seized and sold.

The court found that the trustee took possession of the boat on May 30, 2011, and the statement of claim was issued exactly two years later on May 30, 2013, making it within the limitation period.

The court also noted that the alleged conversion likely occurred when the boat was sold, not when possession was taken.

The motion for summary judgment was dismissed.

A contractor commenced an action to enforce payment of the balance owing under a contract for the supply and installation of polyurethane spray foam insulation at an industrial property.

The defendants refused payment alleging extensive overspray damage to equipment and asserting that the balance had been forgiven due to deficient workmanship.

The court found that significant overspray occurred and that the contractor’s workmanship was substandard, but rejected the alleged agreement to forgive the balance and found the defendants had continued using the equipment without remediation while preventing the contractor from attempting cleanup.

Applying a reasonable reduction to account for the deficiencies, the court awarded the contractor a reduced balance of the contract price and dismissed the defendants’ counterclaim.

The contractor was also granted a construction lien for the amount of judgment and partial indemnity costs.