Fernando Souza

The appellants purchased an HVAC system installed by the respondent in 2006.

The system malfunctioned almost immediately.

The respondent assured the appellants that problems were due to improper maintenance and sold them a maintenance contract.

After two years of unsuccessful maintenance, the appellants concluded the respondent had been lying.

By fall 2009, they consulted other HVAC providers.

In November 2010, the manufacturer informed them the system was improperly installed.

The appellants commenced an action in February 2012.

The respondent moved for summary judgment arguing the action was statute-barred under the two-year limitation period in the Limitations Act, 2002.

The motion judge granted the motion, finding the appellants discovered their claim well before February 2010.

The appellants appealed, arguing they did not discover their claim until November 2010 when they learned the reason for the system's failure.

The majority of the Court of Appeal dismissed the appeal, holding that the appellants did not need to know the precise cause of the malfunction to discover their claim—only that the system was not working and the respondent was responsible for its installation.

The dissent argued that knowledge of the improper installation was essential to discovering the claim and that the respondent's fraudulent concealment should have tolled the limitation period.

The appellants, construction trades, appealed a Master's decision granting summary judgment dismissing their breach of trust actions against the respondents and refusing to lift bankruptcy stays.

The Divisional Court upheld the Master's finding that the appellants' breach of trust claims were discovered when they signed minutes of settlement in 2009, making their 2012 and 2013 actions statute-barred under the Limitations Act, 2002.

Consequently, there was no basis to lift the bankruptcy stays under s. 69.4 of the Bankruptcy and Insolvency Act.

The appeals were dismissed.

The plaintiff brought a motion for summary judgment seeking payment of over $5.1 million in outstanding invoices for bitumen supplied to the defendant.

The defendant argued the claim was partially statute-barred and that the parties had entered into a new agreement allowing the defendant to withhold payment to set off costs from alleged roadway deficiencies caused by the plaintiff's product.

The court found the claim was not statute-barred, as the limitation period began 30 days after the statement was delivered.

However, the court found a genuine issue requiring a trial regarding the existence of the new agreement and ordered a mini-trial on that issue.

The moving party defendant brought a motion to compel the responding party plaintiff to answer undertakings and refusals from an examination for discovery, and to re-attend to answer follow-up questions.

The court ordered the plaintiff to answer most of the contested questions, finding them relevant to the pleadings, but declined to order production of communications between counsel and experts or the experts' files, citing a lack of factual foundation for improper influence.

The plaintiff was ordered to re-attend discovery, and the moving party was awarded costs in the cause.

The plaintiff brought a motion for various procedural relief, including leave to bring the motion after setting the action down for trial, further examinations for discovery, and further documentary production.

The court granted leave under Rule 48.04(1) due to substantial amendments to the pleadings.

The court ordered further examinations of certain defendants and non-parties, and ordered the defendants to serve further and better supplementary affidavits of documents.

Timetables were set for expert reports and further motions.

Costs of the motion were awarded to the plaintiff in the cause, while costs of a prior motion were awarded to the defendants in the cause.

The defendant developer moved to discharge a construction lien registered by the plaintiff contractor, arguing the lien was registered out of time because the parties had entered into five separate contracts rather than one global contract.

The plaintiff cross-moved for summary judgment, asserting there was only one contract for the entire subdivision project.

Applying principles of contract interpretation, the court found the explicit provisions of the contractual materials clearly established five separate agreements.

Consequently, the plaintiff's lien was registered out of time and was invalid, particularly as it was registered against premises where no work or materials were supplied.

The defendant's motion to discharge the lien and release funds paid into court was granted.

The plaintiffs retained the defendant to install an HVAC system in their new home.

The system experienced significant problems immediately after installation in 2006.

Despite maintenance attempts, the problems persisted, and by late 2009, the plaintiffs were consulting other service providers who advised the system was improperly installed.

The plaintiffs commenced an action for damages in February 2012.

The defendant brought a motion for summary judgment to dismiss the action as statute-barred.

The court granted the motion, finding the plaintiffs discovered their claim well before February 2010, as they knew the system was defective and were no longer relying on the defendant's good faith efforts to remedy the issues.

The Moving Defendants (original defendants and proposed individual defendants) brought a motion seeking answers to refused questions from plaintiffs' witnesses and directions for the examination of a Vancouver-based witness, Mr. Hui, insisting on an in-person examination in Toronto.

The court ordered Mr. Hui's examination to proceed by video conference, citing proportionality and the objectives of the Rules of Civil Procedure.

Regarding the refused questions, the court ordered the production of complete contracts referenced by the plaintiffs but denied requests for general contractor contracts, KPMG's full file, and particulars of services from other contractors, deeming them disproportionate or irrelevant to the narrow issues of the motion to amend.

Costs were awarded to the plaintiffs, fixed at $4,000.00.

A motion was brought seeking various forms of disclosure and re-attendance at discovery.

Some matters were resolved by consent, including a defendant municipality serving a supplementary affidavit of documents and a representative attending discovery for up to 2 hours.

The court addressed the requirement for leave to bring the contested parts of the motion, denying leave for most requests as they did not fall under Rule 48.04(2)(b).

For the remaining contested relief concerning a co-defendant's supplementary affidavit, the court declined to order it as the co-defendant agreed to comply with their obligations.

The scope of the municipality's re-attendance was limited to documents in the supplementary affidavit.

The court also ordered the moving party to pay installment costs thrown away for amendments to the statement of claim to the responding parties.

The defendant brought a motion to compel a representative of the plaintiffs to answer an undertaking arising from an examination for discovery regarding which Vitullo family member or related entity held an interest in a real estate brokerage connected to the transaction at issue.

The underlying action involved a claim for specific performance of a real estate transaction and a counterclaim alleging undisclosed conflicts of interest involving the broker and familial relationships.

The moving party argued the shareholding information was relevant to a pleaded conflict-of-interest allegation.

The responding party contended the question was irrelevant and that no undertaking had been given.

The court held the information was relevant to the pleadings and ordered the witness to provide the requested undertaking.

The appellant appealed a decision of the Criminal Injuries Compensation Board awarding compensation to her former son-in-law for injuries she caused him.

The appellant argued she was denied procedural fairness because the Board did not notify her of the hearing, despite her having returned a form explicitly checking a box to indicate she did not want notice.

She claimed the Board should have warned her of the potential impact of the hearing on a related civil action.

The Divisional Court dismissed the appeal, finding the appellant clearly waived her right to notice and the Board had no duty to provide legal advice regarding collateral civil proceedings.

Following a motion concerning the vacating of construction liens upon posting reduced security, the moving parties sought partial indemnity costs of approximately $7,700.

The court considered the circumstances of the motion, including short service of the original motion, the fact that the ultimate relief ordered differed from the relief originally sought, and the novelty of the reduced-security structure proposed under the Construction Lien Act.

The court found the responding lien claimants’ opposition to be reasonable and noted that alternative statutory mechanisms were available to the moving parties without requiring the motion.

Given the mixed success and the conduct of the moving parties, the court declined to award costs.

The defendants brought a motion seeking leave and an order requiring a corporate plaintiff to post security for costs in a construction lien action.

Although the court accepted that the defendants had established grounds under Rule 56.01(1)(d) of the Rules of Civil Procedure and that the plaintiff had not proven impecuniosity with sufficient evidence, the court exercised its discretion to refuse security for costs.

The motion had been brought after significant unexplained delay, the defendants had not complied with earlier court-ordered undertakings, and their counterclaims arose from the same facts and were substantially larger than the plaintiff’s claim.

These factors militated against granting security for costs.

The motion was therefore dismissed.

Mortgagees brought a motion under ss. 44(2) and 78 of the Construction Lien Act seeking to vacate five construction liens from title to condominium units by posting alternative security.

The development consisted of 26 commercial condominium units, most of which had already been sold, while five units remained unsold.

Lien claimants argued that security equal to nearly the full amount of the liens should be posted in cash from sale proceeds.

The court held that the mortgagees’ proposal—posting partial cash security while leaving the liens on title to the remaining unsold units—provided more than adequate combined land and cash security and better preserved potential equity by reducing mortgage debt and accumulating interest.

The court ordered the liens vacated from the sold units upon posting security while remaining on the unsold units pending further order.

The court determined costs following a trial in which the plaintiff obtained judgment exceeding its earlier settlement offer.

The issues included the appropriate prejudgment interest rate, the applicable scale of costs under Rule 49.10 of the Rules of Civil Procedure, and whether the plaintiff’s claimed fees were excessive.

The court rejected the plaintiff’s request for a higher prejudgment interest rate and applied the statutory rate under the Courts of Justice Act.

Because the plaintiff obtained a judgment more favourable than its settlement offer, it was entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

The court reduced the fee component by 12% to reflect the substantial indemnity scale rather than full indemnity and fixed total fees at $50,000 plus HST, with disbursements of $5,134.16 plus HST.

The plaintiff brought a motion under Rule 34.15 of the Rules of Civil Procedure seeking an order compelling the defendant contractor to answer certain undertakings and refused questions arising from an examination for discovery.

The disputed questions concerned information about bonuses allegedly paid by the project owner to the contractor for work performed by the plaintiff subcontractor.

The defendant argued that the bonus issue constituted a new claim improperly raised in the plaintiff’s reply rather than the statement of claim and therefore refused to answer discovery questions on the topic.

The court held that the bonus issue formed part of the existing pleadings and that any challenge to the adequacy of the pleading should have been brought by motion to strike or amend.

The questions were relevant to the issues as pleaded and were ordered to be answered within a specified time.

The appellant appealed the dismissal of his application seeking to compel the respondents to consent to severing a one-acre parcel of land pursuant to a memorandum of agreement.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the relevant clause lacked sufficient certainty on essential terms, such as location, dimensions, title, and price, to be legally enforceable.

The appellant banquet hall appealed a Small Claims Court decision dismissing its claim for breach of contract and ordering the return of the respondents' $10,000 deposit.

The respondents had booked a wedding reception but sought to postpone it due to illness, which the appellant treated as a cancellation under the contract.

The Divisional Court allowed the appeal, finding the trial judge erred in law by failing to apply proper principles of contractual interpretation.

The contract clearly stipulated that a failure to proceed on the specific function date constituted a cancellation, entitling the appellant to retain the deposit and claim liquidated damages.

The appellant appealed a trial judgment finding it breached a Master Area Franchise Agreement by wrongfully terminating it.

The trial judge found the termination was based on a misconception of the respondent's payment obligations.

The Court of Appeal upheld the liability finding but corrected mathematical errors in the damages calculation, adjusting the award to $1,141,400.

The respondent sued the appellant personally for a contract debt.

At trial, the appellant's counsel consented to judgment against the appellant's numbered company, and the trial proceeded against the appellant personally.

The trial judge found the appellant personally liable because he held himself out as the owner of the business and did not clarify he was contracting through a corporation.

On appeal, the appellant argued the respondent could not obtain judgment against both the agent and the principal.

The Court of Appeal dismissed the appeal, holding that the appellant could not rely on this defence because it was not pleaded and was raised too late, prejudicing the respondent.