Emilio Bisceglia

Ozz Electric Inc., a subcontractor, brought a motion to amend its Statement of Claim to advance various claims against the project owner, The Corporation of the City of Kitchener.

The proposed amendments included claims that the City was liable under a Labour and Material Payment Bond, liable in negligence for economic loss due to project delays, and liable for contribution and indemnity for alleged deficient workmanship.

The court dismissed all proposed amendments, finding no legal basis for the City's liability under the bond, that the negligence claim for economic loss was insufficiently pleaded, and that the claim for contribution and indemnity lacked a tenable legal basis.

The motion was dismissed without prejudice to Ozz Electric Inc. to bring a further motion to amend the negligence claim with proper pleading.

The plaintiff, a facilities manager with 15 years of service, sued for wrongful dismissal after being placed on a temporary layoff.

He brought a motion for summary judgment, arguing the layoff constituted constructive dismissal.

The court found that the unilateral layoff, absent a contractual term, was indeed a constructive dismissal.

However, the court also found that the plaintiff failed to mitigate his damages by refusing a genuine offer of reinstatement to his exact same position and by not making reasonable efforts to find alternative employment.

Consequently, the plaintiff's damages were limited to three months' salary in lieu of notice, corresponding to the period he would have been out of work had he accepted the reinstatement offer.

The moving defendants sought leave under s. 215 of the Bankruptcy and Insolvency Act to continue a crossclaim against the trustee in bankruptcy of a bankrupt tenant arising from environmental damage caused by a leaking tank at leased premises.

The court considered whether the proposed crossclaim disclosed a viable claim of gross negligence, given statutory protections limiting a trustee’s liability for post‑appointment environmental damage.

The court held that the evidentiary record disclosed a sufficient factual basis to support a potential claim that the trustee, while retaining possession of the premises and having prior knowledge of environmental risks and inadequate site security, may have failed to take reasonable preventative steps.

The court further held that the discontinuance of the plaintiff’s claim against the trustee did not bar the crossclaim for contribution and indemnity under the Negligence Act.

Leave was granted nunc pro tunc and the crossclaim was declared not dismissed under Rule 23.03(1.1).

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.

Following the plaintiff’s success on a summary judgment motion, the court determined the appropriate quantum and scale of costs.

The plaintiff sought approximately $27,000 on a substantial indemnity basis, arguing the defendant advanced meritless defences.

The defendant argued the motion was straightforward and proposed costs of about $5,000.

Applying the principle that costs must be fair and reasonable from the perspective of the unsuccessful party, the court declined to award substantial indemnity costs.

Costs were fixed at $15,000 plus HST and disbursements.

The moving parties sought costs following two motions attacking an amended statement of defence and counterclaim.

Success was divided on the motion to strike portions of the defence, resulting in no costs for that motion.

However, the moving parties were completely successful in having the counterclaim struck out, although with leave to amend.

The court considered factors under Rule 57.01(1), including the $4,000,000 damages claim, the respondents’ conduct in ignoring a judicial warning and amending pleadings late while maintaining offending allegations, and reputational implications for the lawyer defendants.

Costs of $5,000 all inclusive were awarded for the successful motion to strike the counterclaim.

A subcontractor brought a motion for summary judgment against a general contractor for unpaid amounts arising from asphalt paving work performed pursuant to a purchase order for a retirement home construction project.

The contractor resisted payment, alleging deficiencies in the work, unauthorized extras, and non-payment by the project owner.

The court found the subcontractor’s documentary evidence regarding the extras and completion of the work to be uncontradicted and drew an adverse inference from the contractor’s failure to provide affidavit evidence from the on-site representative with direct knowledge.

The court held that the subcontract did not make payment conditional upon the contractor receiving payment from the owner.

Finding no genuine issue requiring a trial under the summary judgment test, the court granted judgment for the subcontractor for the claimed amount plus pre-judgment interest and costs.

The plaintiff and defendants by counterclaim brought a motion to strike portions of an Amended Statement of Defence and Counterclaim on the basis that certain allegations were irrelevant, frivolous, or disclosed no reasonable cause of action.

The court struck paragraphs relating to a separate incident and repetitive descriptions of the parties’ physical attributes.

Allegations concerning the prior relationship between the parties and statements about the plaintiff’s employment with his lawyer were permitted to remain because they responded to issues raised in the statement of claim.

The court held that lawyers acting for a party do not owe a duty of care to opposing parties, and therefore claims against the plaintiff’s counsel and her law firm in their professional capacity could not stand.

The counterclaim was struck out with leave to amend.

The defendants moved to set aside or stay an order for possession and writ of possession issued following default judgment on a mortgage debt and to compel an accounting of distrained assets.

They argued that enforcement should be suspended under s. 22 of the Mortgages Act due to an alleged failure by the mortgagee to provide a statement of arrears.

The court found that the mortgagee had complied with its obligations by providing notice of sale and the amount owing.

The defendants had also failed to establish that they were not served with the statement of claim and failed to disclose the full litigation history when obtaining an earlier ex parte stay.

As no defence on the merits or basis for equitable relief was demonstrated, the court declined to stay the writ of possession.