Duncan William Glaholt

The appellant appealed the dismissal of its application for judgment against the respondent for $7,451,662.65 under a settlement agreement.

The parties had contracted for construction of the western portion of the Eglinton Crosstown Tunnel.

The respondent was required to obtain third-party liability insurance, with the appellant as an additional insured.

The appellant was responsible for paying 100% of deductibles for third-party claims.

After substantial performance, the parties settled outstanding contract disputes with mutual releases that included a clause preserving rights and obligations regarding insurance policies.

The respondent withheld $6.4 million from the final settlement payment, claiming it was due for outstanding deductible claims.

The appellant argued the settlement released it from deductible obligations.

The motion judge dismissed the application, finding the release did not release the appellant from its deductible obligations.

The Court of Appeal upheld this decision, finding the release language clearly preserved all rights and obligations relating to insurance policies, including deductible payment obligations.

The applicant sought judgment for $7.45 million pursuant to a settlement agreement.

The respondent claimed a right of set-off for insurance deductibles under the construction contract's owner-controlled insurance policies.

The applicant argued that a release executed as part of the settlement extinguished the respondent's right to claim the deductibles.

The court interpreted the release in its factual matrix and concluded it was limited to the five specific disputes settled, and did not terminate the applicant's ongoing obligation to pay deductibles under the continuing contract.

The application was dismissed.

The appellant, a contractor, challenged an international commercial arbitral award arising from a US$258 million pipeline construction project in Madagascar.

The appellant sought to set aside portions of the award on grounds of lack of jurisdiction over counterclaims, failure to exercise jurisdiction over prolongation costs, denial of procedural fairness regarding retention monies, hydro seeding costs, and costs awards, and violation of public policy regarding alleged double recovery from forfeiture of tranche payments and liquidated damages.

The application judge dismissed all claims.

On appeal, the court upheld the dismissal, finding that the tribunal had jurisdiction to hear the counterclaims, that the prolongation costs claim was addressed by the tribunal, that procedural fairness was afforded on all issues, and that the award did not violate public policy.

Following the dismissal of the plaintiff's action for delay, the defendants sought costs on a substantial indemnity basis.

The plaintiff argued the defendants should not receive costs due to their delay in bringing the motion to dismiss.

The court held the defendants were entitled to costs, but only on a partial indemnity basis, as the plaintiff's conduct was not reprehensible, scandalous, or outrageous.

Given the lengthy delay and the fact that the judges who dealt with the merits had retired, the court found exceptional circumstances warranted referring the costs for assessment rather than fixing them.

The defendants brought a motion to dismiss the plaintiff's action for delay under Rule 24 of the Rules of Civil Procedure.

The action, which alleged negligent engineering in the construction of a cogeneration station, had been dormant for several years following a successful appeal by the plaintiff in 2009.

The court found the delay to be inordinate, inexcusable, and prejudicial to the defendants, as several potential witnesses were no longer available.

The court dismissed the action for delay and confirmed its authority to award costs, directing the parties to provide further submissions on the costs issue.

The applicant sought to set aside an international commercial arbitration award under the International Commercial Arbitration Act.

The arbitration involved a dispute over the construction of a pipeline in Madagascar.

The applicant argued the arbitral tribunal exceeded its jurisdiction, denied the applicant the right to present its case, and made findings contrary to Ontario public policy.

The Superior Court of Justice dismissed the application, finding no jurisdictional errors, no denial of procedural fairness, and no double recovery that would offend public policy.

The court also noted it would have exercised its discretion to uphold the award even if minor procedural errors had occurred.

The appellant withdrew its appeal from the order of the Divisional Court.

The Court of Appeal ordered the appeal withdrawn with prejudice and without costs.

The applicant sought judicial review to quash a municipality's decision awarding a construction contract to a third party, alleging breaches of procedural fairness and natural justice.

The Divisional Court dismissed the application, finding that the requested remedy of certiorari or mandamus was discretionary and inappropriate because the third party had already commenced work.

The court concluded that damages would be an adequate and preferable remedy for the applicant.

Following an appeal, the Court of Appeal issued a supplementary costs endorsement regarding the costs of the underlying summary judgment motion.

The Court directed that the costs of the motion be fixed by the motion judge in light of the appeal's result, unfettered by the terms of the original judgment.

The appellant appealed a summary judgment dismissing its action against the respondents for damages related to cracked heat recovery steam generators at a power plant.

The motion judge had ruled the claims were barred by the 12-month limitation period under the Professional Engineers Act.

The Court of Appeal upheld the dismissal of claims based on engineering design deficiencies but allowed the appeal regarding the proposed amended claims for breach of a product durability warranty, finding a genuine issue for trial as to whether those claims fell outside the scope of professional engineering services and were subject to a six-year limitation period.

The appellants perfected a construction lien, and the respondent moved to discharge it on the basis that the work was not lienable.

The motion was dismissed, and the respondent appealed to the Divisional Court.

While the decision was under reserve, the two-year period to set the action down for trial under s. 37 of the Construction Lien Act expired.

The respondent successfully moved to have the lien declared expired, which was upheld by the Divisional Court.

The Court of Appeal dismissed the appellants' appeal, holding that the time limits in ss. 37 and 46 are mandatory and are not suspended by a reserved judgment.

The appellants appealed an order vacating their construction lien and dismissing their action for failing to set the matter down for trial within the two-year limitation period under section 37(1) of the Construction Lien Act.

The appellants argued it was impossible to set the action down because the fundamental issue of whether the work was lienable was under reserve by the Divisional Court at the time the limitation period expired.

The Divisional Court dismissed the appeal, finding that there was no practical or legal impossibility preventing the appellants from complying with the strict statutory requirements.

The appellants appealed an order vacating their construction lien and dismissing their lien action for failing to set the action down for trial within the two-year statutory limitation period under the Construction Lien Act.

The appellants argued it was impossible to set the action down because the fundamental issue of whether the work was lienable was under reserve by the Divisional Court at the time the limitation period expired.

The Divisional Court dismissed the appeal, finding that there was no practical or legal impossibility preventing the appellants from complying with the strict statutory requirements to set the action down for trial.

On an appeal from summary judgment in a construction trust case, the court held that rents received by a commercial landlord after certification of substantial performance were trust funds under s. 7(3) of the Construction Lien Act until the unpaid contractor was paid.

The court rejected the argument that rent used for operating expenses, taxes, utilities, and mortgage payments fell outside the statutory trust or that only profits were captured.

The sole officer, director, controlling mind, and signing officer was personally liable under s. 13 because he at least reasonably ought to have known of the breach.

Relief under s. 35 of the Trustee Act was unavailable, although the prejudgment interest rate against the individual appellant was varied from the contractual rate to the rate under the Courts of Justice Act.