Donald B. Shanks

A commercial tenant sought a declaration under the Commercial Tenancies Act that a landlord had wrongfully distrained its assets and equipment after terminating the tenancy by changing the locks, or alternatively that the distraint was excessive.

The application judge found that changing the locks did not terminate the lease because the tenant retained access to the premises during business hours and by arrangement after hours.

The application judge ordered a trial to determine whether the distraint was excessive, as the parties had not provided sufficient particularized evidence of the value of the distrained equipment or the exact amount of rent arrears.

The Court of Appeal upheld the application judge's decision, finding that while a summary determination was possible on the lease termination issue, the parties had not presented sufficient evidence to determine the amount of rent outstanding, the value of the distrained goods, or any damages.

An employee with a disability developed arm and hand problems due to work demands and was placed on medical leave, then terminated.

The employee sued for wrongful dismissal and Human Rights Code violations.

The trial judge awarded 15 months' pay in lieu of notice and $10,000 in damages, finding the employer had accommodated the disability to the point of undue hardship and that disability was a factor in termination.

On appeal, the employee sought additional damages for lost income during the leave period, while the employer cross-appealed arguing the employment contract was frustrated.

Both the appeal and cross-appeal were dismissed, with the court finding no palpable and overriding error by the trial judge.

The appellant appealed a Small Claims Court judgment awarding him $750 for a defective roof installation.

He argued the trial judge erred by allowing a representative of the shingle manufacturer to give opinion evidence without filing an expert report or being formally qualified as an expert.

The Divisional Court held that Small Claims Court judges have discretion under section 27 of the Courts of Justice Act to admit opinion evidence without a prior report.

However, the Court found the trial judge made a palpable and overriding error by discounting the witness's $2,000 repair estimate by 75%.

The appeal was allowed in part, and damages were increased to $2,250.

The plaintiff contractor brought an action under the Construction Lien Act against the defendant owners for unpaid invoices relating to masonry work on a remote island cottage.

The defendants argued the plaintiff over-billed, delayed the project, and performed deficient work.

The court found the parties had a time and materials contract, the plaintiff's billings were largely accurate, and the defendants' complaints about deficiencies were unfounded or related to work outside the plaintiff's scope.

The court awarded the plaintiff $117,554.43, including interest and late charges, and declared a lien on the property.

The moving party contractor sought partial summary judgment declaring that funds held by the owner constituted trust monies under the Construction Lien Act and requested immediate payment.

The owner acknowledged the funds were subject to a statutory trust but asserted a right of set-off for alleged delay and deficiency damages under the contract.

The court examined the interaction between the trust provisions and the statutory holdback regime, holding that once lien rights of subcontractors have expired, funds may cease to be characterized as holdback and the owner may assert set-off rights against trust funds.

Because the validity and quantum of the set-off claim and the lien claim remained disputed, these issues constituted triable issues.

Partial summary judgment and immediate payment were therefore inappropriate.