F. Bogach

The defendants brought a motion to compel answers to questions refused during the cross-examination of the plaintiff's principal on her affidavit, in advance of a pending security for costs motion.

The court granted leave for the refusals motion, finding it necessary to ensure procedural rights.

The court ordered the plaintiff to answer questions regarding its cessation of operations and the principal's relationship with a former employee, as these matters were raised in the affidavit.

However, the court dismissed the requests to compel answers regarding the plaintiff's assets, liabilities, banking records, the defendants' bill of costs, and human rights claims, finding them irrelevant or improper.

The plaintiff, a general contractor, commenced an action against the defendant mechanical subcontractor regarding a construction project.

The defendant had previously commenced a construction lien action which was referred to a Master for trial.

The plaintiff brought a motion on consent to refer this action to the same Master to be tried with or immediately following the lien action, to avoid multiplicity of proceedings and inconsistent findings.

The court granted the consent order.

The plaintiff general contractor brought a motion to refer its action against a performance bond surety to a Master, to be tried alongside a related construction lien action commenced by a subcontractor.

The defendant surety consented to the relief.

The court granted the motion, finding that a joint trial before the Master was the most efficient procedure and would prevent inconsistent findings.

Schindler Elevator Corporation brought an action to perfect a construction lien for unpaid services and materials supplied for the installation of elevators at the Women's College Hospital redevelopment project.

The general contractor, Walsh Construction/Bondfield Partnership (WBP), counterclaimed for delay impact losses, liquidated damages, and indemnification for penalties, alleging Schindler's delayed performance critically impacted the project schedule.

The court found that while Schindler breached the subcontract by delayed performance, WBP failed to prove that Schindler's delays impacted the critical path of the project or caused the majority of the claimed damages.

Schindler was awarded judgment for the unpaid subcontract balance, less minor set-offs for direct impacts, and WBP's claims against Schindler and its surety, Zurich, were dismissed.

In a pre-trial motion regarding the admissibility of trial affidavit evidence, the moving party sought to strike the entirety of an affidavit.

The moving party argued the affidavit contained inadmissible, irrelevant, and opinion evidence without proper foundation.

The Master found that while the affiant had personal knowledge of certain communications, substantial portions of the affidavit lacked foundational knowledge or contained improper legal interpretation and argument.

The Master ordered specific paragraphs struck but admitted the remainder of the affidavit.

The plaintiff, Schindler Elevator Corporation, moved for the production of fully unredacted minutes of settlement between the defendants (WBP) and a third party (Yuanda).

WBP had produced a partially redacted version, claiming settlement privilege over the financial terms.

The court found that while the specific settlement amounts should remain privileged, other redacted information relevant to the apportionment of delay and quantification of damages must be disclosed to ensure procedural fairness at the upcoming trial.

The court ordered WBP to produce a further version of the minutes with only the specific settlement amounts and payment dates redacted.

The moving party sought an order authorizing a US attorney to conduct the examination and cross-examination of US-based delay experts at an upcoming trial in a construction lien reference.

The responding parties opposed the motion, arguing the Law Society Act prohibits non-licensees from providing legal services in Ontario.

The Master dismissed the motion, finding that the clear and precise language of section 26.1 of the Law Society Act removed any inherent jurisdiction of the court to permit a non-licensee to provide legal services, and a reference master has no greater discretion than the court.

Following the dismissal of a motion for leave to appeal, the successful defendant sought costs on a partial indemnity basis.

The responding party conceded entitlement to costs but argued the amount claimed was excessive, particularly with respect to legal research disbursements.

Applying the fairness and reasonableness principles under Rule 57.01 of the Rules of Civil Procedure, the court assessed the competing submissions and fixed costs at an amount lower than requested but higher than the amount proposed by the responding party.

Costs were awarded on a partial indemnity basis.