Gregory D. Wrigglesworth

The applicant brought a motion for a declaration that the respondent was in contempt of an Ontario court order that recognized a Polish court order.

The underlying order required the respondent to provide the applicant with access to all books and documents of their jointly owned, now-liquidated business.

The court found that the respondent intentionally breached the clear and unequivocal order by failing to provide access to documents from the period the business was in operation.

The respondent was found in contempt and ordered to provide a complete list of documents and access to them, with the motion adjourned to allow him to purge his contempt.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) registered by the plaintiff against their properties.

The plaintiff, an electrical subcontractor, alleged that the defendant contractor breached the statutory trust provisions of the Construction Lien Act by misappropriating funds to maintain and improve the subject properties.

The defendants argued that a breach of trust claim cannot give rise to an interest in land and denied using trust funds for the properties.

The court found that a claim for a remedial constructive trust arising from a breach of statutory trust can support a CPL.

Due to the defendants' failure to provide a proper accounting of the trust funds, a triable issue remained regarding the plaintiff's interest in the lands.

The motion to discharge the CPL was dismissed.

Following dismissal of the action for delay, the defendants sought substantial indemnity costs based on allegations of fraud made against them and the plaintiff’s delay in prosecuting the action.

The court rejected the argument that the action itself constituted an abuse of process merely because a prior action existed, noting the claims were not identical and the matter had not been decided on its merits.

However, the court found the plaintiff’s delay in prosecuting the action was contumelious, inexcusable, and unexplained, which justified an elevated costs award.

Substantial indemnity costs were therefore awarded to the defendants despite the absence of a trial on the merits.

The court also noted that while a Rule 49 offer had been served, the award of substantial indemnity costs made it unnecessary to determine whether that offer independently justified enhanced costs.

The plaintiff was required to show cause at a status hearing why its action for fraudulent conveyance should not be dismissed for delay.

The defendants sought dismissal, arguing the plaintiff took no steps for extended periods.

The Master found that while a 12-month delay was unexplained, the plaintiff had been actively pursuing the action against another defendant.

Finding no non-compensable prejudice to the defendants, the Master declined to dismiss the action and ordered a timetable for next steps.