Glenn William Ackerley

The defendants (other than Johnson Controls) brought a motion to stay the action based on alleged failure by the plaintiff and Johnson Controls to immediately disclose a settlement agreement (the Pro Rata Agreement) that they claimed changed the litigation landscape.

The court dismissed the motion, finding that timely disclosure was made in the context of this particular case and that the agreement did not change the litigation landscape because the action had been effectively stayed and the dispute was being pursued in arbitration.

The court also addressed the application of new Rule 49.14 regarding partial settlement disclosure and fashioned appropriate remedies.

The plaintiff, Canadian Flight Academy Ltd. (CFA), brought a motion seeking production of documents and answers to refusals from the City of Oshawa in a dispute over a lease extension at the Oshawa Executive Airport.

The motion addressed three main areas: airport noise complaints, land parcel "Part 42" usage, and a proposed land sale.

A significant portion of the ruling focused on the City's claims of solicitor-client and litigation privilege over various emails and "closed reports." The court applied principles of relevance, proportionality, and third-party privacy, and conducted a detailed, document-by-document analysis of privilege claims, granting some production requests while upholding many of the City's privilege assertions.

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.

This case conference addressed the scheduling of Carillion Construction Inc.'s motion for further productions against the City of Toronto and NORR Limited in a complex multi-party construction litigation concerning Toronto's Union Station project.

Carillion sought various production orders and a discovery completion deadline prior to a scheduled mediation.

The City and NORR argued for delaying the motion until after mediation, citing the volume of existing documents and the laborious process of retrieving new ones.

The court determined that Carillion's motion should proceed prior to mediation, finding no cogent reason to delay the argument, but indicated that the actual production of documents, if ordered, could potentially be deferred until after the mediation.

The court urged counsel to schedule the motion.

The applicant, Freyssinet Canada Limitée, brought a Rule 21 motion to determine a question of law regarding whether Parkway Infrastructure Constructors (PIC) is precluded from recovering damages claimed in its counterclaim, which are also claimed against Builder's Risk insurers.

Freyssinet argued that a covenant to insure in the Project Agreement, and potentially an implied term in the Subcontract, allocated risk away from it.

The court dismissed the motion, finding that material facts were in dispute, the enforceability and interpretation of the Subcontract were contested, and a full factual record was necessary for proper adjudication.

The court also found no legal bar to PIC's counterclaim, noting that PIC was not acting as an insurer bringing a subrogated claim against its own insured.

Chartis Insurance Company of Canada moved for partial summary judgment to dismiss a claim by Walsh Construction/Bondfield Partnership for payment on a performance bond, arguing the action was statute-barred.

The court found that determining whether the claim was statute-barred required extensive factual findings regarding the subcontractor's actual default, proper notice, and cure of defaults, which constituted genuine issues requiring a trial.

The motion was dismissed due to the complexity of the factual matrix and the risk of inconsistent findings with related construction lien actions involving other parties.

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 moving party, Aecon Buildings, brought a motion to quash an appeal on the basis that the lower court's order denying a stay of the action for abuse of process (based on an alleged champertous agreement) was interlocutory.

The Court of Appeal dismissed the motion to quash, finding that the lower court's decision finally determined a claim that could have ended the action in favour of the appellant, making it a final order subject to appeal.

The applicant sought judicial review to quash a municipality's decision awarding a construction contract to a third party, alleging breaches of procedural fairness and natural justice.

The Divisional Court dismissed the application, finding that the requested remedy of certiorari or mandamus was discretionary and inappropriate because the third party had already commenced work.

The court concluded that damages would be an adequate and preferable remedy for the applicant.

The plaintiff bank brought actions for judgment on mortgages and to declare a property transfer a fraudulent conveyance.

The defendant counterclaimed for abuse of process, intentional infliction of mental suffering, and breach of fiduciary duty, alleging the bank was piling on claims to pressure her into settling the first mortgage claim despite her serious illness.

The bank's motion to strike the counterclaim was initially dismissed.

On appeal, the Divisional Court struck the claims for abuse of process and intentional infliction of mental suffering, finding the defendant failed to plead a collateral purpose or an act outside the action.

The court held that the bank's delay in bringing the motion did not prevent striking a pleading that was a nullity in law.

The claim for breach of fiduciary duty was allowed to stand.

The appellant bank brought actions to enforce mortgages and declare a transfer of property void as a fraudulent conveyance.

The respondent counterclaimed for abuse of process and intentional infliction of mental suffering, alleging the bank was piling on claims to pressure her into a settlement.

The bank moved to strike the counterclaim.

The Divisional Court allowed the appeal in part, striking out the claims for abuse of process and intentional infliction of mental suffering as they disclosed no reasonable cause of action, despite the bank's delay in bringing the motion.