Frank Costantini

The court determined costs for two summary judgment motions.

Arcamm Electrical Services Ltd. successfully obtained judgment against 4342 Queen St Niagara Holdings Inc. for unpaid invoices, while its claim against Avison Young Real Estate Management Services LP was dismissed as Avison was found to be Queen's agent.

Avison Young also successfully obtained indemnification from 4342 Queen St Niagara Holdings Inc. for its legal costs.

The court awarded partial indemnity costs to Arcamm against Queen, partial indemnity costs to Avison against Queen (for defending Arcamm's claim via a Sanderson Order), and full indemnity costs to Avison against Queen (for its successful indemnification claim).

The decision emphasized Queen's conduct in unnecessarily complicating the proceedings and refusing to admit facts.

This decision concerns a summary judgment motion brought by Avison Young Real Estate Management Services LP (Avison) against 4342 Queen St Niagara Holdings Inc. (Queen) on Avison's crossclaim for indemnification.

Avison, as property manager for Queen, had retained Arcamm Electrical Services Ltd. to restore power to Queen's property after an electrical failure.

Arcamm was not paid and sued both Avison and Queen.

In a prior decision, Queen was found liable to Arcamm, but Avison was not.

Avison sought indemnification from Queen under their Real Estate Management Services Agreement (REMSA).

Queen argued that the indemnity provisions did not apply due to lack of a written contract with Arcamm and alleged Avison's gross negligence.

The court found that Avison had "executed" a contract with Arcamm in the ordinary sense, triggering Queen's indemnity obligations under sections 4.11 and 5.4 of the REMSA.

The court rejected Queen's argument that section 11.1 (gross negligence exception) applied to Arcamm's debt claim, finding it pertained to different circumstances.

Queen's crossclaim against Avison was dismissed, and Avison's motion for summary judgment on its crossclaim for indemnification was granted, including past and future legal costs.

Arcamm Electrical Services Ltd. brought a summary judgment motion against Avison Young Real Estate Management Services LP and 4342 Queen St Niagara Holdings Inc. for unpaid invoices related to emergency electrical repairs and equipment replacement at a commercial property.

The court granted summary judgment against 4342 Queen St Niagara Holdings Inc. (Queen), finding it liable as the owner under the Construction Act and in contract for the services and materials provided.

The court dismissed the claim against Avison Young Real Estate Management Services LP (Avison), concluding that Avison acted solely as Queen's agent and was not an "owner" under the Act, nor liable in contract.

The court also addressed the applicability of prompt payment provisions, finding Arcamm's invoices were not "proper invoices" under the Act, and clarified that the decision on Arcamm's invoices would not prejudice related subrogated claims regarding transformer damage.

The appellant brought a motion before a panel of the Court of Appeal to review a single judge's decision denying permission to file a factum of at least 125 pages.

The panel found that the motion judge carefully considered the request and identified the relevant considerations.

Finding no reason to interfere, the panel dismissed the motion and ordered the appellant to file its factum within 30 days, with costs awarded to the respondents.

The moving party sought leave to file an appellate factum exceeding the 30-page limit, proposing a draft factum of approximately 125 pages.

The moving party argued that the issues were complex, the trial was long, and it needed to rely on proposed fresh evidence.

The Court of Appeal dismissed the motion, finding that the moving party failed to demonstrate exceptional circumstances justifying an extension.

The court emphasized the importance of conciseness and efficiency in appellate advocacy, noting that the moving party's choice to raise numerous grounds of appeal did not warrant an extended factum.

The moving defendants (Ironman Canada Inc., Triathlon Ontario, and World Triathlon Corporation) sought summary judgment to dismiss a co-defendant's crossclaim and grant their counterclaim against the plaintiff, based on a Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement.

The court found the waiver of the right to sue enforceable against the plaintiff, who had electronically accepted it.

However, the indemnity clause within the agreement was deemed unenforceable due to its dense, unclear legalese, which failed to adequately convey its meaning and onerous positive obligations.

The court also determined that the co-defendant motorist, Beatrice Jackson, was not a third-party beneficiary of the release, as she was not an entity associated or involved with the activities as defined in the agreement.

Consequently, the motion for summary judgment was dismissed in its entirety.

The plaintiff brought a motion to substitute a known roofing contractor for a 'John Doe Contractor' defendant on the basis of misnomer, to have three related fire damage actions tried together, and to assign the matter to case management.

The court dismissed the misnomer motion, finding the proposed defendant could not have reasonably known the 'litigating finger' was pointed at him since he was known to the plaintiff and the pleading described an unknown entity.

The court granted the request to try the actions together due to overlapping facts and witnesses, but declined to order case management.

The plaintiff, Alberto Becerra, sought leave to issue a fresh as amended statement of claim in a construction lien action, aiming to increase the claim quantum, add new grounds of recovery including unjust enrichment, punitive damages, and claims related to an unrelated prior project.

The court dismissed the motion, finding that leave ought not be granted as the motion was neither necessary nor would it expedite the resolution of the issues, as required by the Construction Lien Act.

Furthermore, even on the merits, the proposed amendments were largely statute-barred under the Limitations Act, constituted improper joinder of unrelated claims, or attempted to join a breach of trust claim, which is precluded by the Construction Lien Act.

A third party moved for summary judgment dismissing a third party claim for contribution and indemnity arising from an oil tank fuel leak at a residential property.

The claim alleged the third party was vicariously liable for the negligent installation of the tank by an employee.

The court held that the uncontroverted evidence established the employee installed the tank independently as a personal favour outside working hours and contrary to the employer’s policies.

Because the plaintiff dealt with the employee in a personal capacity and the employer’s enterprise did not contribute to the risk, vicarious liability could not arise.

Summary judgment was granted and the third party claim dismissed.

The plaintiffs brought motions seeking leave to vacate a certificate of trial readiness under Rule 48.04(1) of the Rules of Civil Procedure, amend their statement of claim under Rule 26.01, and conduct examinations for discovery of the defendants.

The underlying action arose from a slip and fall on an allegedly unstable concrete slab at the entrance of a residential property purchased from the developer and builder defendants.

The court found that the suspension of the plaintiffs’ former counsel by the Law Society constituted an unexpected change in circumstances justifying leave to vacate the certificate of readiness for trial.

However, the proposed amendments were refused because they introduced a new cause of action based on contractual allegations that would cause non-compensable prejudice and raise limitation period issues.

The court permitted the plaintiffs to proceed with examinations for discovery of the defendants, with the plaintiffs responsible for the costs of such discoveries in any event of the cause.