Emilio Bisceglia

Following an 11-week construction lien trial where the plaintiff recovered $254,464 after set-off, the plaintiff sought over $1.2 million in costs and disbursements.

The plaintiff had made a Rule 49 offer to settle for $217,000, which the defendants rejected.

The court assessed the reasonableness and proportionality of the costs, noting that while the costs far exceeded the recovery, applying a strict results-based proportionality would be unfair given the defendants' refusal to settle and the consequences of Rule 49.

The court reduced several expert disbursements but awarded the plaintiff total costs of $758,421.20.

A subcontractor brought a construction lien action and breach of contract claim against the general contractor arising from delays and termination on a warehouse construction project.

The court found the project experienced substantial delay caused by permitting issues, weather, design problems, owner‑driven restrictions on consultant access, and sequencing failures not attributable to the subcontractor.

The general contractor terminated the subcontractor after it temporarily demobilized while awaiting workable site conditions; the court held the termination was unlawful and did not constitute abandonment or repudiation.

The subcontractor was entitled to unpaid contract funds and compensation for delay‑related labour overruns and overhead costs, while the contractor received limited credits for specific deficiencies including conduit remediation and wire replacement.

The contractor’s counterclaim for completion costs largely failed because the termination prevented the subcontractor from finishing its work.

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).

The plaintiff moved for leave to amend a statement of claim arising from alleged investment fraud by an advisor and alleged supervisory failures by institutional defendants.

Some amendments were granted on consent and some were withdrawn.

The court granted the contested amendments, holding they pleaded material facts rather than evidence, were relevant to negligence and punitive damages allegations, and were proportionate despite increasing the scope and complexity of discovery and trial.

Leave was also granted for a further particular of alleged negligence.

In a commercial receivership, the receiver sought approval of a stalking horse agreement and a court-supervised sales process for substantially all of the debtor companies' marina business assets.

Certain mortgagee creditors objected to the inclusion of two properties on the basis that the allocated purchase price understated fair market value and would not satisfy their registered charges.

The court held that the broader interests of creditors and stakeholders in preserving and selling the business as an operating marina outweighed those concerns at this stage, approved the stalking horse offer and sale process, and deferred any final determination about inclusion of the disputed properties to the ultimate sale approval motion under the applicable sales approval framework.

The court also granted a sealing order over commercially sensitive appendices and approved the receiver's reports and conduct.

The appellant architect appealed a summary judgment dismissing its third party claims for contribution and indemnity against two sub-trades in a complex construction delay dispute.

The motion judge had dismissed the claims on the basis that there was no firm evidentiary foundation for the sub-trades' liability.

The Court of Appeal allowed the appeal, finding that the motion judge committed an error in principle by failing to assess the advisability of summary judgment in the context of the litigation as a whole.

Because the sub-trades' responsibility for project delays remained a live issue in the main actions, granting partial summary judgment created an unacceptable risk of duplicative proceedings and inconsistent findings of fact.

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.

At a commercial list case conference in complex multi-party litigation involving disputed financial transactions, the court addressed case management issues relating to discovery planning.

The parties agreed to a joint litigation and discovery plan aimed at identifying disputed transactions and clarifying the parties’ positions.

The court ordered that all undertakings arising from examinations for discovery be answered within 60 days and expressed reluctance to schedule refusals motions, noting they often add little value and that adverse inferences may be drawn at trial where proper questions are refused.

The matter was scheduled for a further case conference to assess the potential for mediation and estimate trial length.

The moving defendants sought an order striking portions of the plaintiffs’ responses to a demand for particulars and requiring further particulars of negligence allegations pleaded in the statement of claim.

The court held that the original pleading of negligence was bald and inadequate, but the plaintiffs’ subsequent responses to the demand for particulars provided sufficient detail to allow the defendants to plead and proceed to discovery.

While the responses used open-ended language that could potentially permit additional allegations, the court found that this risk could be managed through discovery and case management directions.

The court declined to strike the pleading or require further particulars, emphasizing the need to move the long-standing action forward.

The plaintiff drywall contractor brought a construction lien action against the defendant homeowner for unpaid work and extras on a custom home project.

The parties disputed the contract price, whether certain work constituted extras, alleged cash payments, and back-charges for incomplete work and mold remediation.

The court found the defendant fundamentally breached the contract by failing to pay and denying the plaintiff access to the site.

The court awarded the plaintiff $78,262.50 plus partial GST, allowing some claims for extras while crediting the defendant for incomplete work, and dismissed the defendant's claims regarding cash payments and mold remediation.

Following a motion and cross-motion that resulted in mixed success for both parties, the court invited written costs submissions.

The moving party sought partial indemnity costs exceeding $11,000, while the responding party sought approximately $8,800 or alternatively no order as to costs.

The court observed that the motion prompted the parties to moderate their positions and engage in compromise.

Taking into account the mixed success and proportionality considerations, the court exercised its discretion to fix a lump sum costs award payable to the moving party.

The plaintiff brought a productions motion in a contractual dispute concerning a 2007 central financing agreement.

The plaintiff alleged the defendant breached the agreement due to pressure from GM dealers and sought production of documents relating to a proposed Consillium financing structure, GM dealer meeting records, internal credit policies, and redacted communications.

The court found several categories of documents relevant to the pleaded theory and ordered production of documents concerning the creation of Consillium and internal policy materials, including menus of credit policy titles.

The defendant was also required to request relevant records from a dealers’ association and provide sufficient descriptions for documents claimed as privileged.

The motion and cross‑motion resulted in mixed success, with further costs submissions invited.

The appellant municipality appealed the dismissal of a charge against the respondent for failing to comply with an order under the Building Code Act.

The lower courts had dismissed the charge on the basis that it was laid outside the one-year limitation period.

The Court of Appeal allowed the appeal, finding that the subject matter of the proceeding was the failure to comply with the order, which occurred within the limitation period.

The court clarified that the existence of other remedies under the Act does not preclude prosecution.

The dismissal was set aside and a new trial was ordered.

The applicant sought a stay of an Ontario Municipal Board (OMB) hearing regarding minor variances granted to her neighbour, pending the determination of her application for judicial review.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the applicant would not suffer irreparable harm because the OMB hearing is a hearing de novo where the onus remains on the respondent.

The balance of convenience favoured proceeding with the OMB hearing.

The application for a stay was dismissed.

The Registrar of the Alcohol and Gaming Commission of Ontario issued a Notice of Proposal to suspend the liquor licence of the corporate licensee operating as The Flying Dog.

An inspection found several drunken patrons in the licensed premises, contrary to subsection 45(1) of Ontario Regulation 719/90.

The parties proceeded by way of an Agreed Statement of Facts and a Joint Submission on Disposition.

The Board accepted the joint submission and ordered a 5-day suspension of the liquor licence.