Derek A. Schmuck

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.

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 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 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 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.

The appellant appealed a decision declaring that no valid Agreement of Purchase and Sale existed between a builder and a purchaser.

The builder agreed to construct a home in Welland.

The purchaser made unilateral amendments to Schedule D of the agreement (striking out "builder's samples" in six places) without the builder's knowledge or consent.

When a dispute arose over the choice of kitchen cabinet supplier, the application judge found no meeting of the minds due to the parties' fundamentally different understandings of the contract terms, particularly regarding supplier selection.

The Court of Appeal upheld the decision, finding the application judge's factual findings were entitled to deference and that the builder had acted reasonably throughout the dispute.

The plaintiff subcontractor brought a motion for summary judgment on its construction lien claim against the general contractor.

The general contractor failed to file any responding materials and relied solely on its pleadings and technical arguments.

The court granted summary judgment, finding no genuine issue requiring a trial as the general contractor had admitted the supply of services and materials and had no evidence to dispute the quantum or timeliness of the lien.

The plaintiff subcontractor brought a motion for summary judgment on its construction lien claim for $94,729.17 against the general contractor, who had posted a lien bond to vacate the lien.

The general contractor filed no responding materials, arguing instead that leave was required and that the evidentiary record was deficient under s. 17(1) of the Construction Lien Act.

The court rejected these arguments, finding that leave was granted, Rule 48.04 did not bar the motion, and the uncontradicted evidence established the timeliness and quantum of the claim.

Summary judgment was granted in favour of the plaintiff.

The plaintiff equipment rental company moved for summary judgment against the defendant developer for rental charges and damages related to equipment left on the defendant's site after the general contractor went bankrupt and abandoned the project.

The plaintiff advanced claims of unjust enrichment, quantum meruit, and conversion.

The court dismissed the motion, finding no evidence that the defendant used or benefited from the equipment after the contractor abandoned the site, nor any evidence that the defendant caused damage to the equipment.

Trenchline Construction Inc. (TCI) brought a claim for $449,862.61 in "stand-by charges" against Trisura Guarantee Insurance Company (under a Labour & Material Payment Bond) and Unimac-United Management Corp. and Metrolinx (under a construction lien).

The court found that while TCI had a contractual entitlement to claim standby costs under the incorporated CCDC General Conditions, it failed to provide sufficient corroborating evidence to prove these costs were actually incurred.

The court also found TCI's "onsite" standby claim to be an attempt to inflate the claim, significantly detracting from the credibility of its principal witness.

Consequently, TCI's standby costs claim was denied in its entirety, both under the Bond and as lien rights.

Following the release of a decision on the merits, the successful applicant sought substantial indemnity costs of $20,209.81.

The respondent argued for no costs or, alternatively, costs fixed at $8,000.

Applying Rule 57.01(1) and the principles from Boucher, the court found the issues were not complex but were important to the applicant.

The court awarded partial indemnity costs to the applicant fixed at $15,000 inclusive of disbursements and HST.

The applicant sought a stay pending appeal of an order requiring her to discharge a certificate of pending litigation registered against a residential property.

The application judge had found no valid agreement of purchase and sale existed between the parties and ordered the applicant to discharge the CPL.

The Court of Appeal granted the stay, finding the applicant met the RJR-MacDonald test: she raised serious issues on appeal, demonstrated irreparable harm based on the property's unique custom-built nature, and the balance of convenience favoured granting the stay given the respondent's lack of evidence regarding prejudice from the CPL's continued registration.

Dew Point Insulation Systems Inc. brought a claim under the Construction Lien Act against Aqua Mechanical Contracting Ltd., Metrolinx, and Grascan Construction Ltd. for unpaid services and materials.

Aqua defaulted, and Metrolinx was discontinued.

The primary issue at trial was whether security posted by Grascan to vacate Aqua's lien could be used to satisfy Dew Point's claims, including costs and pre-judgment interest, beyond the security posted for Dew Point's own lien.

The court held that the security posted for Aqua's lien could be notionally pooled with Dew Point's lien security to satisfy Dew Point's claims, costs, and pre-judgment interest, relying on the principle that all persons having lien claims are entitled to distribution from the pooled security.

This decision addresses two cross-applications concerning the validity of an Agreement of Purchase and Sale for real property.

The court found no consensus ad idem between the parties due to uninitialed amendments made by the purchaser and differing interpretations of material terms, particularly regarding kitchen cabinetry suppliers.

Consequently, the Agreement of Purchase and Sale was declared null and void, the purchaser's request for specific performance was dismissed, and the vendor's request for an injunction against encumbrance was implicitly granted by ordering the discharge of the Certificate of Pending Litigation.

The vendor was ordered to return the deposit with interest.

This decision addresses two cross-applications concerning the validity of an Agreement of Purchase and Sale for real property.

The court found no consensus ad idem between the parties due to uninitialed amendments made by the purchaser and differing interpretations of material terms, particularly regarding kitchen cabinetry suppliers.

Consequently, the Agreement of Purchase and Sale was declared null and void, the purchaser's request for specific performance was dismissed, and the vendor's request for an injunction against encumbrance was implicitly granted by ordering the discharge of the Certificate of Pending Litigation.

The vendor was ordered to return the deposit with interest.