Derek A. Schmuck

In the liability phase of a civil trial arising from a dispute between a construction contractor and a municipality, the court determined liability on the contractor’s claim and the municipality’s counterclaims.

The contractor succeeded on its claim and on its defence to the counterclaims.

The municipality’s counterclaims were dismissed.

The court indicated that detailed reasons would follow and directed the parties to provide written submissions regarding costs of the trial phase.

In a complex construction lien dispute involving multiple related actions arising from the redevelopment of a municipal facility, several parties brought a motion to vary a prior case management order to establish a trial sequence.

The consolidated litigation involved lien claims, bond claims, and related economic loss and trust claims among a municipality, a general contractor, sub‑trades, architects, and bonding parties.

The moving parties sought to try the sub‑trades’ lien claims first, followed by the general contractor’s lien claim and then the remaining actions.

The court held that a case management judge has broad procedural authority under Rule 77 to manage litigation efficiently and may vary earlier procedural orders where new circumstances arise.

Considering a conditional settlement offer and the potential for significantly shortening the litigation, the court granted the motion and ordered the proposed trial sequence.

The defendant municipality brought a motion under Rule 31.11 seeking to read in discovery evidence of subcontractors in a construction dispute involving lien claimants.

After issuing reasons dismissing the motion, the court issued a supplementary endorsement addressing reply submissions that had not initially come to the judge’s attention due to an administrative issue.

The moving party argued that s. 15 of the Ontario Evidence Act permitted the use of discovery evidence of non-adverse parties against both subcontractors and the general contractor.

The court rejected that interpretation, holding that it would undermine the wording of Rule 31.11 limiting read‑ins to evidence against the adverse party.

The court accepted the reasoning in Cain v. Peterson as governing authority and affirmed dismissal of the motion.

The defendant municipality brought a motion seeking leave under Rule 31.11(1) of the Rules of Civil Procedure to read into evidence at trial excerpts from examinations for discovery of subcontractor lien claimants.

The motion arose in the context of a construction dispute and lien action concerning termination of a construction contract.

The responding party argued that discovery evidence given by one party cannot be read in against a different party in a multi‑party action.

The court held that the wording of Rule 31.11(1), specifically the use of the term “the adverse party,” restricts read‑in evidence to use against the party who provided it on discovery.

The motion was dismissed.

The plaintiff subcontractor brought a motion for summary judgment seeking payment allegedly owed by the defendant general contractor on several construction projects and also sought an order requiring the defendant, as plaintiff by counterclaim, to post security for costs.

The court held that the plaintiff failed to meet the evidentiary burden required on a summary judgment motion.

The affidavit evidence provided only conclusory assertions regarding amounts owed and failed to set out the contractual framework, the work performed, or proof supporting the claimed entitlement to payment.

Applying the principles governing summary judgment motions, the court found the plaintiff had not put its best foot forward and had not provided a record capable of permitting adjudication on the merits.

The request for security for costs was also denied due to the absence of a factual foundation.

Following a successful trial concerning the interpretation of a registered easement agreement, the successful applicant sought costs on a substantial indemnity basis exceeding $98,000.

The respondents argued no costs should be awarded, relying on an arbitration clause in the agreement and a prior consent order, and alternatively sought reduced partial indemnity costs.

The court held the arbitration clause had effectively been waived by the parties’ consent to litigate the dispute and affirmed the principle that a successful party is generally entitled to costs.

Applying Rule 49.10(1) of the Rules of Civil Procedure and considering Rule 57.01 factors, the court awarded partial indemnity costs to the date of the offer to settle and substantial indemnity costs thereafter.

A global costs award of $85,000 inclusive of disbursements and taxes was ordered.

The applicant sought declaratory and injunctive relief concerning the scope of a registered easement over her property used as part of a shared laneway servicing several subdivided residential lots.

The respondents claimed the easement allowed them to excavate the applicant’s land, construct a driveway to their garage, and park vehicles there.

The court interpreted the express easement agreement governing the subdivision and held that the right of way was limited to vehicular passage along the common lane and the installation and maintenance of service lines.

Ancillary rights could be implied only where necessary for the use of the easement, not merely convenient.

The respondents’ driveway construction, grading alterations, and parking exceeded the scope of the easement and interfered with the servient tenement.

Declaratory relief, restoration orders, and a permanent injunction were granted.

A subcontractor lien claimant, Swan & Associates Inc., moved for partial summary judgment declaring its claim for lien was timely.

The owner, the City of Guelph, opposed the motion, arguing the lien was registered out of time and that the recent work was for repairing deficiencies rather than contract work.

The court found that the intermittent architectural finishing work performed by the subcontractor was contract work, not deficiency work.

The court concluded on a balance of probabilities that the subcontractor's last date of supply was within the 45-day statutory period.

The motion for partial summary judgment was granted.

The court issued an addendum to a previous endorsement to clarify that the dismissal of a motion to quash an appeal included the issues of re-attendance for discovery and further examinations.

The court also dismissed a motion to expunge a costs outline, holding that non-compliance with Rule 57.01(6) of the Rules of Civil Procedure is not fatal where there is no prejudice and procedural and substantive justice can still be accomplished.

The plaintiff brought a motion to quash the defendant's appeal of a motion judge's order.

The motion judge had denied the defendant leave to bring a motion seeking answers to undertakings and refusals, and permission to amend its statement of defence and counterclaim.

The plaintiff argued the order was interlocutory and therefore could not be appealed under s. 71(3) of the Construction Lien Act.

The Divisional Court dismissed the motion to quash, finding that the denial of leave to amend the statement of defence effectively barred the defendant from raising substantive defences, rendering the order final rather than interlocutory.

The appellant condominium corporation brought an application to remove the respondent's cats from her unit, after a previous identical application by the unit owner was dismissed and not appealed.

The application judge dismissed the second application as an abuse of process.

The Court of Appeal upheld the dismissal, finding that the appellant was an active participant in the first application and that permitting the second application would be manifestly unfair to the respondent by forcing her to relitigate the same issue.