Gregory Paul Mallia

Following a successful trial in a construction lien action where the plaintiff was awarded damages and the defendant's counterclaim was dismissed, the parties made written submissions on costs.

The plaintiff sought costs on a partial and substantial indemnity basis, relying on an unaccepted offer to settle that was beaten at trial.

The court applied Rule 49.10, finding the plaintiff's offer triggered substantial indemnity costs from the date of the offer.

After adjusting for excessive pre-trial hours and an abandoned motion, the court fixed costs payable to the plaintiff at $54,925.36 inclusive of disbursements and HST.

A general contractor brought a construction lien action for unpaid invoices arising from a residential apartment renovation project, and the owner counterclaimed for deficiency, delay, and lost rental income damages after terminating the contract.

The court held the owner unlawfully terminated the contract, finding no fundamental breach, repudiation, or anticipatory repudiation by the contractor, and further finding the owner failed to provide the clear contractual notice of default required before termination.

The court also found the owner had refused to permit the contractor to return to cure alleged deficiencies, failed to prove its post-termination damages, and failed to mitigate.

The contractor recovered the unpaid value of approved work, subject to disallowance of one unproven bin charge, together with the contractual holdback and interest.

This decision addresses a summary judgment motion by Security National Insurance Company (SN) seeking to dismiss claims for unidentified automobile and family protection coverage.

The central issue was whether the deceased, Lawrence Hamel, and the named insured, Yvonne Moelker, qualified as "spouses" under the Insurance Act and OPCF 44R endorsement, given they maintained separate residences due to Hamel's mental health.

SN argued for a strict co-residence requirement, while the plaintiffs and the Motor Vehicle Accident Claims Fund advocated for a broader interpretation aligned with family law's dependency context.

The court dismissed SN's motion, adopting the expansive, holistic definition of "spouse" from the Family Law Act, which does not mandate shared dwelling, finding that Yvonne and Larry were indeed spouses.

The applicants, Stress-Crete Limited and King Luminaire Company Inc., sought a permanent injunction against their former employee, Stephen Harriman, to prevent him from breaching non-competition, non-solicitation, and confidentiality clauses in his employment agreement by working for a direct competitor.

The court found the non-competition clause ambiguous and unenforceable due to its overly broad geographical scope.

However, the non-solicitation and confidentiality provisions were deemed clear, reasonable, and enforceable.

The court found a serious issue to be tried, irreparable harm to the applicants from the use of confidential information and solicitation, and that the balance of convenience favored the applicants regarding these latter provisions.

The motion for a permanent injunction was granted in part, restraining Harriman from soliciting former clients and employees and from using confidential information for two years.

The defendant brought a motion for documentary production from the plaintiff prior to scheduled examinations for discovery in a motor vehicle accident claim.

The plaintiff opposed the requests on the basis of relevance, overbreadth, and the deemed undertaking rule.

The court dismissed the motion, finding it premature as the defendant failed to meet the threshold test of relevancy under Rule 31.06.

The court ordered all parties to serve sworn affidavits of documents prior to discovery.

Following a discovery motion concerning undertakings, refusals, and disclosure obligations, the parties were unable to agree on costs.

The court found that the defendant had been justified in bringing the motion and had been largely successful on issues including production of photographs, access to Facebook materials, and a bone scan request.

Applying Rule 57.01(1) of the Rules of Civil Procedure and the fairness principles governing cost awards, the court considered the hours claimed and the absence of a costs outline from the plaintiff.

The court held the defendant was entitled to costs on a partial indemnity basis.

Costs were fixed at $3,272.92 inclusive of fees, disbursements, and HST.

The defendant brought a motion seeking production of outstanding undertakings from discovery, including employment, insurance, and medical records, production of photographs and Facebook content, and an order requiring the plaintiff to undergo a bone scan as part of an independent medical examination.

The court held that a party who undertakes to obtain records from non-parties must take reasonable follow‑up steps where appropriate.

The court ordered the plaintiff to follow up with certain third parties and to serve a supplementary affidavit of documents disclosing relevant photographs depicting her activities before and after the accident.

However, the request for full access to the plaintiff’s Facebook profile was denied due to lack of evidence that relevant documents had been omitted.

The court further ordered the plaintiff to undergo the bone scan recommended by the defence medical examiner, finding it necessary for trial fairness.