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.

The applicants sought a declaration that a 2001 easement and restrictive covenant registered on title to a former golf course prohibited the respondent from developing the lands for residential use.

The respondent argued the covenant only protected storm water management access and did not prevent development.

The court applied contract interpretation principles and found the plain language of the restrictive covenant, read in context, constituted a complete prohibition on building structures on the golf course lands.

By operation of the Land Titles Act, the covenant was deemed to expire 40 years after registration, prohibiting residential development until 2041.

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.

The plaintiffs brought a motion to exclude the defendants from each other's examinations for discovery and to prevent the sharing of discovery transcripts and information among them.

The underlying action alleged fraudulent transfers of funds and land to thwart the collection of previous judgments.

Applying the Lazar principles, the court found sufficient evidence of deceit and improper conduct to justify the orders to prevent collusion and ensure the integrity of the discovery process.

The motion was granted, and the plaintiffs were awarded partial indemnity costs.

The appellant, a non-party principal of the plaintiff construction company, appealed a trial judge's order making him jointly and severally liable for approximately $579,000 in costs.

The trial judge found the appellant had engaged in gross misconduct, including lying under oath and forging documents to support an inflated construction lien claim.

The Divisional Court dismissed the appeal, holding that the trial judge properly exercised her inherent jurisdiction to award costs against a non-party whose conduct amounted to an abuse of process.

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 moving party, a non-party to the underlying action, sought leave to appeal a costs order made against him by the trial judge.

The Divisional Court granted leave to appeal solely on the question of whether the trial judge erred in ordering costs payable by a non-party.

Costs of the motion for leave were fixed at $5,000, payable in the discretion of the panel hearing the appeal.

The defendants brought a motion under Rule 21.01(1)(a) to strike the plaintiffs' claims for declaratory relief regarding express, resulting, and constructive trusts, as well as fraudulent conveyances.

The plaintiffs, who are judgment creditors, alleged that the defendants transferred properties to their spouses to defeat creditors.

The court dismissed the motion to strike, finding that the plaintiffs had pleaded sufficient facts to support their claims and that it was not plain and obvious the claims would fail.

The court also granted the plaintiffs' countermotion for a discovery plan.

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 plaintiff sub-subcontractor moved for summary judgment on its construction lien claim against the defendant subcontractor.

The defendant cross-moved to withdraw a prior admission regarding the quantum of the lien and to amend its defence to claim set-offs for deficiencies alleged by the general contractor, as well as relying on a 'pay-when-paid' clause.

The court granted the defendant leave to withdraw the admission and amend its defence.

The court granted partial summary judgment to the plaintiff, fixing the quantum of the lien at $414,049.99, but directed a trial on the issue of whether the 'pay-when-paid' clause was agreed to and enforceable.

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 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.