Gregory N. Hemsworth

This lien action concerned a substantial home renovation project.

The plaintiff, Hannan Custom Building Ltd., claimed for unpaid services and materials.

The defendants, the Owners, denied a direct contract with the plaintiff, asserting their contract was with DC Builders Ltd., and that Hannan Building was a subcontractor.

The court found no direct contract between the plaintiff and the Owners, but rather a contract between the Owners and DC Builders, making the plaintiff a subcontractor.

The plaintiff's claim against the Owners was thus limited to the basic holdback amount under the Construction Act, subject to proven set-offs for deficiencies.

The court granted judgment to the plaintiff for the basic holdback amount.

The court issued a costs endorsement following a trial where the plaintiff's $2.5 million claim was largely dismissed, with only $15,000 awarded under warranty.

The defendant was deemed the successful party for costs.

The court addressed the parties' conduct regarding document organization and hyperlinking during the virtual trial, which significantly lengthened proceedings.

Despite the defendant's success, their costs award was substantially reduced due to joint failures in trial preparation and adherence to practice directions.

The Plaintiff condominium corporation sued the Defendant window manufacturer for breach of warranty, contract, and negligence regarding defective windows and condensation issues.

The court found that most problems were due to building construction, humidity, or installation errors, which were excluded by the warranty.

However, the court found the Defendant liable for manufacturing defects in approximately 10 Insulated Glass Units (IGUs) that failed due to water leaks unrelated to condensation.

The Plaintiff's claims for general damages and full replacement costs were dismissed, with limited damages awarded for the specific IGU failures under warranty.

This is a costs and interest decision following a trial where Ben-Air Systems Inc. (plaintiff) was found to have a lien and damages for breach of contract, and the defendants' counterclaim was denied.

Ben-Air sought substantial or partial indemnity costs, while Castlemore Plumbing Limited (defendant) sought costs against Ben-Air and its principal.

The court found Ben-Air to be the successful party overall, recovering 43% of its initial claim.

However, the court criticized the conduct of the principals from both parties, finding them equally censurable.

As a result, neither side was awarded substantial indemnity costs, and no personal liability for costs was imposed on Ben-Air's principal.

Ben-Air was awarded $38,000 in partial indemnity costs, approximately 43% of its partial indemnity claim.

Prejudgment interest was also calculated on two amounts at 0.5% per annum.

The plaintiff, Ben-Air Systems Inc., brought an action for a construction lien and damages for breach of contract against Castlemore Plumbing Limited and 2664835 Ontario Inc. The claim against 2664835 Ontario Inc. was discontinued.

Ben-Air alleged wrongful repudiation of the subcontract by Castlemore and sought payment for extras and delay costs.

Castlemore counterclaimed for damages to complete the work.

The court found that Castlemore wrongfully repudiated the subcontract, denying its claim for completion costs.

The court denied Ben-Air's claims for specific extras and delay costs due to lack of proof and credibility issues.

The court ultimately determined Ben-Air's lien and damages based on the original contract, undisputed extras, and a judicially determined credit for uncompleted work, dismissing Castlemore's counterclaim.

Following a procedural motion where the moving defendants successfully obtained an order for a further and better affidavit of documents and written interrogatories, the parties could not agree on costs.

The moving defendants sought $14,217.87 on a substantial indemnity basis, while the plaintiffs argued for no costs due to divided success, or alternatively $3,500.

The court found the moving defendants were largely successful and awarded them costs fixed at $7,500 on a partial indemnity basis, noting the motion was straightforward and did not warrant substantial indemnity costs.

The moving defendants in a $3.5 million debt collection action brought a motion to compel the plaintiffs to produce a further and better Affidavit of Documents and to produce the elderly plaintiff for oral discovery.

The court found the plaintiffs' initial Affidavit of Documents deficient for failing to list relevant banking and loan records, ordering a further and better affidavit.

However, relying on medical evidence of the plaintiff's frail health, the court declined to order her attendance at oral discovery, directing instead that discovery proceed via written interrogatories.

This is a motion to quash an appeal on the basis that the order under appeal was interlocutory, not final, and therefore not properly before the Court of Appeal.

The motion judge had dismissed a motion to strike out claims for declaratory relief, holding that it was not plain and obvious the causes of action had no merit and were properly pleaded.

The Court of Appeal found that the motion judge's order did not finally determine any issues between the parties, leaving them for the trial judge, and was thus interlocutory.

The Court concluded that only the Divisional Court had jurisdiction over such an order and quashed the appeal, awarding substantial indemnity costs to the moving parties.

The plaintiff, Viana Canada Inc., brought a motion for an interlocutory injunction against the defendants, Sartotex Inc. and Claudio Baldo, alleging breach of fiduciary duty, good faith, fidelity, and confidentiality by Mr. Baldo, a former sales manager.

The plaintiff sought to restrain the defendants from soliciting customers/suppliers, competing directly, and using confidential information.

The court applied the three-part test for interlocutory injunctions from RJR-MacDonald, requiring a "strong prima facie case" given the injunction's impact on Mr. Baldo's livelihood.

The court found Mr. Baldo was a fiduciary but determined the plaintiff failed to establish a strong prima facie case of unfair competition or solicitation.

The court also found no clear evidence of irreparable harm and concluded that the balance of convenience strongly favoured the defendants.

The motion for an interlocutory injunction was dismissed.

The defendants brought a motion to set aside an order striking their Statement of Defence and Counterclaim and a default judgment, arguing their failure to appear was due to their former lawyer's negligence and mental health issues.

The court applied Rule 37.14 and Rule 19.08 of the Rules of Civil Procedure, finding that the defendants' failure to appear was an "accident or mistake" attributable to their lawyer, and that the delay in bringing the motion was excusable given the circumstances.

The court emphasized that the "sins of the lawyer should not be visited upon the client" and that the defendants had a meritorious defence.

The motion was granted, setting aside both orders, conditional on payment of substantial indemnity costs to the plaintiff.

The appellant appealed a summary judgment award requiring it to pay outstanding invoices for temporary staffing services.

The appellant sought to rely on a set-off defence based on fraudulent invoices submitted by the respondent's employees for workers who did not actually work at the appellant's plant.

The Court of Appeal upheld the summary judgment, finding that legal set-off was unavailable because the claim was for unliquidated damages, and equitable set-off was unavailable because the appellant bore responsibility for the fraud through its own representative's actions and was in the best position to prevent it.

The appellants sought to set aside an order of the Deputy Registrar dismissing their appeal for delay and to extend the time for perfecting the appeal.

The underlying motion had resulted in the striking of the appellants' statement of defence due to their failure to comply with a discovery plan order.

The appellants did not attend the motion before the motion judge and did not file materials.

The Court of Appeal dismissed the motion on two grounds: first, the appellants were in the wrong court as they had failed to exhaust their remedies in the court of first instance under Rules 37 and 19; and second, even if the court had jurisdiction, the appellants failed to meet the test for setting aside the Deputy Registrar's order, as the delay was long and largely unexplained, prejudice to the respondent was evident, and there was no merit to the underlying appeal.

Following a trial where the plaintiff's construction lien claim was dismissed and the defendants succeeded on their counterclaim, the defendants sought costs.

The court awarded full indemnity costs of $578,793.29 to the defendants due to the egregious and deceitful conduct of the plaintiff's principal, who fabricated documents and lied repeatedly.

The court also ordered the costs to be payable jointly and severally by the plaintiff corporation and its principal personally, finding his conduct amounted to an abuse of process.

Following the dismissal of the plaintiff's construction lien action and the success of the defendants' counterclaim, the defendants sought full indemnity costs against the plaintiff and its non-party principals.

The court found that the plaintiff's principal engaged in egregious conduct, including fabricating evidence and lying under oath, justifying a full indemnity costs award.

The court ordered costs against the plaintiff and one of its non-party principals jointly and severally, finding his conduct amounted to an abuse of process.

Costs were not awarded against the other non-party principal, as he did not orchestrate the deceit.

The plaintiff's construction lien action was dismissed, and the defendants' counterclaim was allowed.

This decision addresses the defendants' request for full indemnity costs against the plaintiff corporation and its principals due to egregious conduct during litigation.

The court awarded full indemnity costs against the plaintiff corporation and one principal jointly and severally, finding that principal engaged in fraud, fabricated evidence, and repeatedly lied.

Costs were not awarded against another principal, as their misconduct was not directly related to the litigation.

The appellant appealed a trial judgment awarding damages for wrongful termination of a promotional contract.

The trial judge found that the contract required the respondent to promote the appellant's product, not serve as a brand ambassador, and that the morals clause was not violated by the private transmission of nude photographs within an intimate relationship, particularly where the act occurred before the contract was executed.

The trial judge awarded $162,500 in damages representing outstanding periodic payments over the four-year contract term.

The appeal was dismissed.

The plaintiff, a professional hockey player, sued the defendant for wrongful termination of a promotional contract.

The defendant had terminated the agreement citing the plaintiff's demotion to a minor league team and the circulation of nude photographs of the plaintiff on the internet.

The court found that the defendant was not entitled to rescind the contract as it had received much of what it bargained for, and the morals clause did not apply retrospectively to the private sharing of intimate photos.

The plaintiff was awarded $162,500 in damages for the remainder of the contract term and its renewal.

Following a reference determining entitlement to contract funds under the Construction Lien Act, the court addressed costs between the parties.

An added party supplier who succeeded at the trial of an issue sought substantial indemnity costs against the plaintiff lien claimant.

The court found the claimant engaged in misleading and reprehensible conduct, including misrepresenting contractual arrangements, misappropriating deposit funds, and pursuing a lien claim despite alternative dispute mechanisms.

Substantial indemnity costs were awarded to the successful supplier and partial indemnity costs were awarded to the contractor defendant against the claimant.

The court also confirmed distribution of funds paid into court and declared the plaintiff’s construction lien invalid.

The plaintiff, operating as Neptun Light, registered a construction lien claiming entitlement to $147,776.60 owed by the defendant contractor for the supply of lighting fixtures.

An added party, Neptun Distributors, also claimed entitlement to the funds, asserting it was the true contracting party.

The court held a trial of an issue to determine who contracted with the defendant.

Applying an objective standard for contract formation, the court found that the contract was formed between the defendant and Neptun Distributors, and that the plaintiff acted as an agent for Neptun Distributors.

The court directed that the funds be paid to Neptun Distributors.

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.