Eric Gionet

The moving party, a residential property owner, brought a motion under section 47 of the Construction Lien Act to discharge two construction liens registered against her property by a subcontractor and an equipment rental company.

The moving party argued the liens were out of time under the 45-day preservation deadline of the old Construction Lien Act.

The court dismissed the motion, finding triable issues regarding whether the old Act or the new Construction Act (with a 60-day deadline) applied, and when the lien claimants last supplied services and materials to the improvement.

Following the dismissal of the plaintiff's wrongful dismissal action, the successful defendant sought costs of $210,000, arguing for substantial indemnity costs from the date of its $25,000 offer to settle.

The plaintiff argued for no costs due to impecuniosity or a reduced amount due to divided success and the reasonableness of her claim.

The court found insufficient evidence of impecuniosity and held that the defendant's offer, being only slightly above nuisance value, did not warrant elevated costs under Rule 49.10(2).

The court awarded the defendant partial indemnity costs fixed at $143,978.67, noting the need to balance the successful party's entitlement with access to justice concerns.

The plaintiff, a long-term executive director of a not-for-profit chamber of commerce, sued for wrongful dismissal after being terminated for cause.

The employer alleged the plaintiff breached her fiduciary duties through various financial irregularities, including altering a banking document, taking unauthorized vacation pay, and allowing an unauthorized pay raise to continue.

The court found that the plaintiff was a fiduciary and that her cumulative misconduct and poor judgment irredeemably fractured the employer's trust.

The court concluded the employer had just cause for termination and dismissed the plaintiff's claims for notice, aggravated damages, and punitive damages.

During a wrongful dismissal trial, the plaintiff objected to the defendant adducing evidence of financial irregularities, arguing the defendant breached the rule in Browne and Dunn by failing to confront her with this evidence during cross-examination.

The court dismissed the objection, finding the defendant had generally met its obligations as the plaintiff was well aware of the allegations from pleadings and discovery.

The court held that the appropriate remedy for any specific transactions not put to the plaintiff would be to recall her to testify, rather than excluding the defendant's evidence.

Following a ten-day trial where the plaintiffs were entirely successful in an easement and property damage dispute, the court determined the costs award.

The plaintiffs had made two offers to settle, both of which they beat at trial.

The court found the defendant's conduct in refusing a walk-away offer and proceeding to trial unreasonable.

Applying Rule 49, the court awarded partial indemnity costs up to the date of the first offer and full indemnity costs thereafter, fixing the total costs at $128,000.

The plaintiffs and defendant owned adjacent properties sharing a laneway subject to a right of way.

The plaintiffs relied on a catchbasin in the laneway for drainage.

The defendant's partner poured a concrete pad over the catchbasin, rendering it inoperable and causing significant flooding to the plaintiffs' property, which prevented them from renting out apartments.

The court found that the right of way included the right to use and maintain the drainage infrastructure.

The defendant's actions constituted a substantial interference and a nuisance.

The court ordered the reinstatement of the catchbasin, enjoined the defendant from blocking the laneway, and awarded the plaintiffs $100,000 in damages for lost rental income and repair costs.

The moving party sought to set aside noting in default entered against it in relation to a counterclaim and crossclaim in consolidated construction lien proceedings and also sought to strike portions of the responding parties’ pleadings.

The court applied the test for setting aside default in construction lien actions, requiring a reasonable explanation for delay, a continuing intention to defend, and evidence of a meritorious defence.

The court found these criteria satisfied and set aside the noting in default.

The court further held that breach of trust allegations contained in the pleadings were barred under s. 50(2) of the Construction Lien Act because trust claims cannot be joined with lien claims, even when raised by counterclaim or crossclaim.

The offending paragraphs were struck, with leave to amend pleadings in compliance with the statute.

Following dismissal of a motion seeking numerous forms of relief in a construction lien dispute, several successful parties sought costs against the moving owners.

The court considered the presumption that successful litigants receive costs and the factors under Rule 57.01(1) of the Rules of Civil Procedure.

The court rejected arguments that alleged misconduct by the successful parties disentitled them to costs and held that the motion was largely unsuccessful and unnecessary in several respects.

Full recovery costs were awarded to one contractor whose claim should never have been contested, while partial indemnity costs were granted to the contractor and subcontractors in reduced amounts to remain fair and proportionate.

The applicants built a house on the respondent's property.

After a falling out, the parties agreed to arbitrate the fair cost of construction using a quantity surveyor.

The arbitrator issued a draft reproduction estimate, but the respondent terminated his counsel and refused to participate further, alleging bias and procedural unfairness.

The applicants sought to enforce the final arbitral award, while the respondent sought a declaration that he was not bound by it.

The court dismissed the respondent's claims of bias and jurisdictional overreach, finding the Arbitration Act applied.

However, because the final award failed to explicitly state its reasons, the court remitted it to the arbitrator to formally attach the reproduction estimate as reasons.

The moving parties, owners of a motel, brought a motion under s. 47(1) of the Construction Lien Act to discharge or vacate several construction liens registered by the contractor and subcontractors.

The owners argued the liens should be discharged or, alternatively, vacated upon posting $100,000 as security.

The court dismissed the motion, finding that a motion to discharge a lien is akin to a summary judgment motion and there were numerous genuine issues of material fact requiring a trial, including responsibility for delays, scope of the contract, and quality of work.

The court also declined to arbitrarily reduce the security amount required to vacate the liens from the $489,000 claimed.

The plaintiff supplier brought a motion for summary judgment alleging breach of the statutory trust provisions under s. 8 of the Construction Lien Act arising from a construction project.

The contractor received deposit funds from the project owners and failed to pay the plaintiff for materials supplied, instead applying the funds to overhead and operational expenses.

The court held that the deposit and outstanding amounts payable by the project owners constituted trust funds within the meaning of the Act.

The contractor breached the trust by using the funds before paying trust beneficiaries, and its directors and officers were found personally liable under s. 13 for knowingly permitting the breach.

Summary judgment was granted and the outstanding amount owing to the supplier was awarded.