Faren Hillary Bogach

The plaintiff brought an unopposed motion for default judgment.

The court found that the plaintiff had not sufficiently complied with a prior order regarding personal service of the motion record and statement of claim, nor had they provided adequate evidence of efforts to locate and serve the defendants (e.g., title search, license plate searches, skip tracer).

The motion was dismissed without prejudice, with revised dates for renewal upon compliance with the service requirements.

The applicants, Gowing Contractors Ltd. and Zurich Insurance Company Ltd., brought a motion seeking further and better production from the defendants Walsh Construction Company Canada and Walsh Construction Co., and leave to amend their pleadings.

The court found that Walsh had overproduced irrelevant documents and failed to produce relevant documents concerning harassment/discrimination allegations and Walsh's delay claim against the City.

The court ordered Walsh to provide a better affidavit of documents, disclose search terms, and produce relevant documents, including those related to its delay claim against the City and its settlement, subject to the City's right to challenge.

Leave to amend pleadings was granted for breach of contract claims but denied for negligence claims and damages related to unrelated projects.

The court also awarded costs thrown away to the applicants due to Walsh's deficient production and late disclosure.

This endorsement addresses the costs arising from successful summary judgment motions brought by the defendants, Jeffrey Lehman et al. and the Corporation of the City of Barrie, against Correct Building Corporation and Correct Group Inc. The court awarded substantial indemnity costs to the individual defendants, finding the claims against them frivolous, baseless, and an abuse of process.

Partial indemnity costs were awarded to the City of Barrie, with a reduction for an abandoned counterclaim and an unrecoverable disbursement for an unproduced expert report.

The total costs awarded were $1,066,412.62.

The defendants, Walsh Construction Company Canada and WCC Construction Canada, ULC o/a Walsh Canada, brought a motion for security for costs against the plaintiff, Gowing Contractors Ltd., under Rule 56.01(1)(d) of the Rules of Civil Procedure, arguing Gowing lacked sufficient assets in Ontario.

Gowing opposed, asserting that significant unpaid holdback funds from completed subcontract work constituted sufficient assets.

The court dismissed Walsh's motion, finding that Walsh failed to meet the threshold onus of demonstrating Gowing's lack of assets.

The Associate Justice held that the holdback funds, even subject to Walsh's set-off claims, were properly considered an asset of Gowing, especially since Walsh had not sufficiently particularized or quantified their alleged set-offs beyond a certain amount, leaving an excess holdback amount that exceeded the requested security for costs.

This decision addresses pre-trial motions brought by both Schindler Elevator Corporation and Walsh Construction Company of Canada, Bondfield Construction Company Limited, and Walsh Construction/Bondfield Partnership (collectively, WBP) concerning the admissibility of substantial affidavit evidence-in-chief tendered for trial.

Both parties raised numerous objections to statements in each other's affidavits, primarily on grounds of unqualified opinion, argument, legal conclusions, hearsay, speculation, and witness competency.

The Master ruled on these objections, striking various paragraphs or portions thereof and admitting others subject to weight, emphasizing that trial evidence must strictly comply with the rules of evidence, unlike evidence on motions or applications.

This decision addresses pre-trial motions brought by both Schindler Elevator Corporation and Walsh Construction Company of Canada, Bondfield Construction Company Limited, and Walsh Construction/Bondfield Partnership (collectively, WBP) concerning the admissibility of substantial affidavit evidence-in-chief tendered for trial.

Both parties raised numerous objections to statements in each other's affidavits, primarily on grounds of unqualified opinion, argument, legal conclusions, hearsay, speculation, and witness competency.

The Master ruled on these objections, striking various paragraphs or portions thereof and admitting others subject to weight, emphasizing that trial evidence must strictly comply with the rules of evidence, unlike evidence on motions or applications.

This supplementary endorsement addresses a dispute over compliance with a previous court order for the production of minutes of settlement.

Schindler Elevator Corporation argued that the defendants (WBP) had excessively redacted the minutes beyond what was permitted, specifically regarding references to items in an exhibit.

The court found that WBP's additional redactions were not justified and went beyond the original order.

It was determined that knowing the specific items to which settlement compensation was allocated was crucial for Schindler to prepare for trial and assess potential double-recovery.

The court ordered WBP to produce a further version of the minutes of settlement, removing the impugned redactions while maintaining the confidentiality of specific settlement and allocation amounts.

The appellants, a developer, appealed from a summary judgment that dismissed claims for conspiracy and negligent and fraudulent misrepresentation against appraisers, and ordered a mini-trial on claims of negligence, inducing breach of contract, and intentional interference with economic relations.

The Court of Appeal upheld the dismissal of the conspiracy and misrepresentation claims, finding no reasonable reliance and no evidence of conspiracy.

The court also set aside the mini-trial order and dismissed the remaining claims, finding they had no possibility of success due to lack of reliance, absence of unlawful conduct, and expiration of the limitation period.

The plaintiff, Walsh Construction/Bondfield Partnership, brought a motion to refer its proceeding against Chartis Insurance Company of Canada to Master Albert, who was already hearing related construction lien matters concerning the same project.

The court considered whether the litigation between the general contractor and the performance bond issuer should be heard by the same Master to avoid a multiplicity of proceedings and inconsistent findings.

The motion was granted, finding significant overlap in factual and legal issues and no undue prejudice to the defendant.

The defendant brought a motion for summary judgment in an action alleging breach of the duty of fairness and good faith in a federal government tendering process.

The plaintiff alleged the procurement authority structured the process to ensure another bidder would succeed and sought damages for loss of the contract.

The court held the matter was largely document-driven and suitable for summary judgment.

Interpreting the tender documents, the court found the procurement authority had broad discretion to reject conditional bids and was not obligated to seek clarification regarding the plaintiff’s conditional agreement of purchase and sale.

The evidence did not establish bias or a sham second tender process.

The motion for summary judgment was granted and the action dismissed.

The defendant municipality moved to discharge a certificate of pending litigation registered by the plaintiff developer in an action seeking specific performance of a preliminary agreement for redevelopment and sale of municipal lands.

The court considered whether the plaintiff had a reasonable claim to an interest in land under s.103(6) of the Courts of Justice Act.

The court held that the preliminary agreement was not a binding contract because essential terms remained unsettled and the transaction depended on further agreements and negotiations, including participation by a third-party development partner that had withdrawn.

As the agreement was incapable of specific performance and the plaintiff therefore had no reasonable claim to an interest in land, the certificate of pending litigation was discharged.