Domenic Saverino

The plaintiff contractor brought a motion to amend its statement of claim to remove references to the Construction Lien Act and proceed on a breach of contract basis after its construction lien had previously been vacated as out of time.

The defendants opposed the amendment and brought a cross-motion seeking dismissal of the action for delay under Rule 24.01 of the Rules of Civil Procedure.

The court held that the original statement of claim already implicitly advanced a contractual claim and that the order vacating the lien did not determine the contractual issues.

Although the action had experienced significant delay and periods of inactivity, the court found the delay sufficiently explained and not prejudicial to a fair trial.

The plaintiff was permitted to amend the pleadings and the defendants’ cross-motion for dismissal was dismissed.

The defendant brought a motion for summary judgment dismissing a claim by an estate seeking repayment of common expenses allegedly owed by a former common-law partner pursuant to a verbal agreement.

The estate asserted that the deceased had paid the partner’s share of expenses during cohabitation on the understanding she would later repay him once disability benefits were received.

The court held that any such arrangement constituted a domestic contract under the Family Law Act and was unenforceable because it was not in writing as required by s. 55(1).

Arguments that the parties were not spouses, that their disabilities prevented written agreements, and that the statute had not been pleaded were rejected.

Summary judgment was granted and the action dismissed.