Derek A. Schmuck

The appellants appealed an order dismissing their motion under Rule 51.06 for judgment on alleged admissions regarding a limitation period defence.

The Court of Appeal held that the motion judge's order did not finally dispose of the rights of any parties or any issue, as the limitation defence could still be argued at trial.

Consequently, the order was interlocutory, and jurisdiction to hear the appeal lay with the Divisional Court.

The appeal was quashed for lack of jurisdiction.

The plaintiff brought a motion for judgment pursuant to written Minutes of Settlement in a construction lien action.

The defendant disputed the plaintiff's claim for interest on outstanding invoices and argued the parties were not ad idem on essential terms.

The court found that a valid settlement agreement existed and that the parties had agreed to payment of $593,522.93 due on September 30, 2024.

The court granted judgment for the outstanding amount plus contractual interest from the due date, rejecting the defendant's argument that the Full and Final Mutual Release precluded interest accrual.

This decision concerns the costs of a motion regarding a construction lien.

The Honsbergers sought to discharge or reduce a lien registered by Homes by Hendriks Inc. The court previously reduced the lien but did not vacate it.

The parties could not agree on costs, so submissions were made.

The court awarded the Honsbergers $51,313.32 in costs, finding their offer to settle was reasonable and that their costs were not disproportionate.

The court declined to order costs against the principal of the plaintiff personally.

The Honsbergers moved to discharge or reduce a construction lien registered by Homes by Hendriks Inc. (HBH) against their property.

The court found that the date of last lienable work was a genuine issue requiring a trial and declined to discharge the lien.

However, the court reduced the lien amount by $145,121.47, finding that certain materials were not delivered and that a 20% management fee was not lienable.

The court clarified its jurisdiction to reduce a lien under section 35 of the Construction Act and provided guidance on the treatment of overhead and project management fees in lien claims.

The Respondent requested a reconsideration of a Fire Safety Commission decision that ordered him to install a complete sprinkler system in a building.

The reconsideration request was filed past the 21-day deadline and failed to include mandatory information required by Rule 18.1 of the Common Rules of Practice and Procedure.

Furthermore, the Commission found no merit to the Respondent's argument that a previously withdrawn appeal created res judicata.

The request for reconsideration was dismissed.

Wessuc Inc. sued Todd Brothers Contracting Limited and The Guarantee Company of North America (GCNA) for breach of contract, unjust enrichment, and breach of trust related to a sludge removal contract.

Todd counterclaimed for Wessuc's failure to complete the contract.

The court found that the contract was a lump sum agreement for 6100 m³ of sludge removal, not a per-unit price for total volume including water.

Wessuc abandoned the project by ceasing work and failing to provide a plan for completion, entitling Todd to terminate the contract.

Wessuc's claim for damages and quantum meruit was dismissed as it did not substantially complete the work.

Todd's counterclaim for costs incurred to complete Wessuc's work, including cattail removal, equipment, fuel spill cleanup, and sand/sawdust for drying sludge, was allowed for $53,000.

GCNA was found to have no obligations under the bond due to Wessuc's failure to provide timely and adequate notice.

Wessuc Inc. brought a motion on the second day of trial to withdraw several admissions made in its Amended Reply and Defence to Amended Counterclaim.

The admissions were inconsistent with Wessuc's main pleadings, particularly regarding the contract terms (unit price vs. capped price) and notice under a labour and material payment bond.

The court applied the three-part test for withdrawing admissions (triable issue, inadvertence, and lack of uncompensable prejudice).

The court found that the proposed amendments raised triable issues, the admissions were due to "breathtaking" inadvertence by counsel, and there was no uncompensable prejudice to the defendants, who had continued preparing for trial on the contested issues.

The motion was granted, allowing Wessuc to withdraw the admissions.

No costs were awarded for the two days of court time lost due to the motion, as both parties were deemed at fault for the delay.

The appellants appealed a motion judge's order, raising two issues: the respondent's failure to produce foundational expert documents and the untimely disclosure of a settlement agreement.

The Court of Appeal found no error in the motion judge's decision not to dismiss or stay the action on either ground.

The court upheld the motion judge's finding that the settlement agreement did not "entirely change the litigation landscape" and was not a Pierringer agreement requiring disclosure.

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

The Taha Defendants moved to set aside a noting in default and dismiss the plaintiffs' motion for default judgment.

The court found the Taha Defendants' evidence admissible despite being hearsay based on context.

Applying the detailed test for setting aside a noting in default from *Trayanov v. Icetrading Inc.*, the court concluded that the Taha Defendants met the onus, considering the short delay, reasons for delay (financial), complexity of the claim, and arguable defence.

The court denied the plaintiffs' request for security for costs, finding it would likely bar the defendants from defending and would unjustly prefer the plaintiffs over existing judgment creditors.

The noting in default was set aside on terms that the Taha Defendants pay the plaintiffs' costs and serve their statement of defence within strict timelines.

The applicant appealed the City of Hamilton's calculation of a cash-in-lieu of parkland fee, arguing that the fee should be reduced under the new provisions of Bill 23.

The central issue was whether an excavation and shoring permit issued prior to Bill 23's in-force date constituted a 'building permit' under the Planning Act and Building Code Act.

The Tribunal applied principles of statutory interpretation and accepted expert evidence that the excavation and shoring permit was indeed a building permit.

Consequently, the Tribunal found that the Bill 23 changes did not apply to the development and dismissed the appeal, upholding the original fee calculation.

The moving party, Halton Standard Condominium Corporation No. 550, brought a motion to quash an appeal by the Del Ridge defendants.

The appeal concerned a motion judge's order that denied variations to previous relief regarding expert reports and denied a motion for a stay of the underlying action based on the non-disclosure of a Pierringer Agreement.

The Court of Appeal found the expert evidence aspect of the order to be interlocutory, but the denial of the stay related to the Pierringer Agreement to be a final order, thus appealable to the Court of Appeal.

Given the interrelatedness of the issues, the court decided to hear both aspects of the appeal together.

The motion to quash was denied.

The applicant appealed the City of Hamilton's decision regarding the cash-in-lieu fee contribution for parkland under section 42(10) of the Planning Act.

At the first Case Management Conference, the Tribunal noted that no requests for party or participant status were received.

The parties presented a draft Procedural Order and Issues List, which were finalized with the Tribunal's assistance.

The Tribunal scheduled a two-day video hearing to resolve the appeal.

The plaintiff subcontractor sued the defendant general contractor for unpaid invoices and extra work performed on a municipal renovation project.

The defendant refused to pay, alleging the plaintiff mismanaged the project, caused significant delays, and performed deficient work, and brought a counterclaim for costs to complete and rectify the work.

The court found the defendant's principal witness lacked credibility and that the defendant had orally approved the extra work, establishing a quantum meruit claim.

The court dismissed the counterclaim, finding no evidence of deficient work and noting the defendant failed to provide contractual notices of default.

The plaintiff was awarded $188,514.62 and its construction lien was declared valid.

The applicants appealed the Committee of Adjustment's refusal of minor variances to permit an accessory building in the front yard and exceeding lot coverage limits.

Prior to the hearing, the parties reached a settlement based on a corrected, reduced building size calculation.

The Tribunal found the amended application minor under s. 45(18.1) of the Planning Act and authorized the variances, finding they met the four tests under s. 45(1).

The moving parties brought a motion for leave to appeal the order of MacNeil J. dated October 16, 2021.

The Divisional Court denied the motion for leave to appeal and awarded costs to the responding party fixed at $2,500 all inclusive.

The Safe Harbour defendants sought to schedule a motion for partial summary judgment.

The plaintiff opposed, citing the recent Court of Appeal decision in *Malik v. Attia*, which set out three requests for judges considering partial summary judgment motions.

The court applied the "bright line rule" from *Mason v. Perras Mongenais* and *Butera v. Chown, Cairns LLP*, finding that a risk of duplication or inconsistent verdicts existed due to common issues, including the limitation period and the cause of the land re-designation.

The court also considered the cost-effectiveness of proceeding with a partial summary judgment.

The motion to schedule the partial summary judgment was refused.

The defendants brought a motion for leave to appeal the order of Skarica J. dated February 4, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party, payable jointly and severally by the moving parties.

The appellant sought to appeal a costs order made under the Construction Lien Act independent of the merits of the judgment.

The court held that pursuant to section 67(3) of the Construction Lien Act, the requirement to obtain leave to appeal costs under section 133(b) of the Courts of Justice Act applies.

As the appellant did not seek or obtain leave, the appeal was quashed.

This blended civil trial concerned a contractor's claim for unpaid renovation invoices, a homeowners' counterclaim for overpayment and deficient work, and a related action for misrepresentation against the contractor's principal.

The court found an unwritten consumer renovation agreement for conversion of an older dwelling into an income-producing multi-unit property, and held that the contractor and its principal negligently misrepresented their competence, the necessity of obtaining permits, and the projected completion timeline.

Because billing for time, materials, and extras was ambiguous and unsupported, the court assessed the value of the work on a quantum meruit basis and deducted deficiency-correction costs.

The contractor's claims were dismissed, punitive damages were refused, and the homeowners recovered overpayment, financing losses, and lost rental income, totalling $124,453.20 plus prejudgment interest.

The appellants appealed a judgment of the Superior Court finding that their failure to close a real estate purchase transaction was due to their own negligence and that of their lawyers.

The appellants sought to have the Court of Appeal find that the application judge misapprehended or ignored evidence.

The Court of Appeal found no error in the application judge's findings and upheld the decision that the appellants would forfeit their deposit and upgrade fees.

The court considered whether the forfeiture was unconscionable, noting that the respondents had resold the property for $240,000 more than the original purchase price, but found the forfeiture was not unconscionable given the appellants' responsibility for the failure to close.