Howard L. Shankman

This is a costs decision following the dismissal of a motion by Toronto Standard Condominium Corporation No. 2890 (TSCC 2890) for summary judgment to end its involvement in a construction lien action.

The court awarded substantial indemnity costs to the successful respondent, E-Tech Electrical Services Inc., finding that the motion lacked merit on its core issue regarding whether TSCC 2890 qualified as a "home buyer" under the Construction Act.

The court determined that the motion unreasonably delayed the conduct of the action and was brought without sufficient justification.

The respondent condominium corporation brought a motion for summary judgment seeking to discharge a construction lien registered by the applicant electrical contractor on the basis that the respondent was a "home buyer" under the Construction Act and therefore not subject to lien, and alternatively that the respondent was not an "owner" as defined in the Act.

The court found that the respondent was not a "home buyer" because the occupancy permit issued was partial and excluded common elements appurtenant to the units, which form part of the statutory definition of "home." The court also found a genuine issue requiring trial as to whether the lien attached to the respondent's interest based on the unclear evidence regarding whether the respondent requested the work or benefited from it.

The motion was denied in its entirety.

The moving parties, a condominium owner and its principal, sought an extension of time to bring a motion for leave to appeal a costs order of $18,758.00.

The underlying motion regarding the use of the condominium unit was dismissed.

The moving parties failed to file their motion for leave to appeal within the required 15 days and delayed 16 months before seeking an extension, only acting when the respondent attempted to enforce a writ of seizure and sale.

The court dismissed the motion, finding no adequate explanation for the delay, prejudice to the respondent who incurred enforcement costs, and no merit to the proposed costs appeal.

The defendants brought a motion for security for costs under Rule 56.01(1)(e) of the Rules of Civil Procedure, arguing the plaintiff's construction lien claims were frivolous and vexatious and that the plaintiff lacked sufficient assets in Ontario.

The court found the plaintiff's claim for an increased management fee was contradicted by its own communications and conduct, and its lien claim on a property completed eight years prior was without merit.

Finding the claims frivolous and vexatious, and noting the plaintiff's poor financial health and lack of proven assets, the court ordered the plaintiff to post $35,000 in security for costs in two installments and stayed the action pending payment.

The court considered costs submissions following a successful motion by the Defendants to set aside a default judgment.

The Defendants sought partial indemnity costs, while the Plaintiff sought substantial indemnity costs, including costs "thrown away" due to the default.

The court found no evidence of costs "thrown away" by the Plaintiff and noted the Defendants' lack of diligence in the underlying default.

Despite the Defendants' success on the motion to set aside default judgment, the court exercised its discretion under Rule 57.01(1) and ordered that each party bear their own costs, finding it fair and reasonable given the circumstances.

The defendants brought a motion to set aside a default judgment obtained by the plaintiff against the Estate of Paramjit Sahanan.

The court applied the factors from *Mountain View Farms Ltd. v. McQueen*, finding that while the defendants' excuse for default was not plausible, they acted promptly upon learning of the judgment and presented an arguable defence on the merits, particularly regarding the limitation period and the nature of the alleged debt.

The court also noted the plaintiff's long period of inaction.

The motion to set aside the default judgment was granted.

The defendants brought a motion for leave to appeal an order of André J. dated April 29, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding parties.

The plaintiffs sought to extend an interim injunction and a Certificate of Pending Litigation (CPL) against the defendants, alleging they were defrauded of $880,000 through an investment scheme involving real estate.

The court found a strong prima facie case of fraudulent misappropriation based on bank records showing funds diverted for personal use and no real estate purchases.

The court inferred a serious risk of asset dissipation and found irreparable harm would result without the injunction.

The balance of convenience favored granting the injunction and CPL.

The defendants' arguments regarding lack of fraud evidence, no risk of dissipation, and non-disclosure were rejected.

The defendants brought a motion to compel the plaintiff to attend a defence medical examination with a neurologist in Toronto.

The plaintiff opposed the location, providing uncontroverted medical evidence from her treating physician and psychologist that she could not tolerate car travel longer than 30 minutes due to her injuries from a skid steer accident.

The court dismissed the motion, finding that while defendants have a prima facie right to choose their medical expert, this right is not unfettered when it compromises the plaintiff's well-being.

The defendants were granted leave to arrange an examination within a 30-minute drive of the plaintiff's residence.

The appellants, a real estate agent and brokerage, appealed a trial judgment granting rescission of an agreement of purchase and sale and the return of a $50,000 deposit to the respondent purchaser.

The appellants had negligently misrepresented the size of the home as 2,000-2,500 square feet, when it was actually 1,450 square feet.

The appellants argued that the purchaser's physical inspection of the property displaced his reliance on their misrepresentation.

The Court of Appeal dismissed the appeal, holding that inspection does not absolutely displace reliance in law, and the trial judge correctly considered contextual factors including the substantial discrepancy in size and the purchaser's inexperience.

The plaintiff, a first-time home buyer, entered into an agreement of purchase and sale for a residential property after being told by the seller and the real estate agent that the home was over 2,000 square feet.

An appraisal later revealed the property was only 1,450 square feet.

The plaintiff sought rescission of the agreement and the return of his deposit.

The court found that the plaintiff reasonably relied on the negligent misrepresentations regarding the property's size and granted rescission, ordering the return of the $50,000 deposit.

The appellant appealed a motion judge's order dismissing her motion to set aside a settlement regarding property in Highland Falls, New York and finding respondents in contempt.

The motion judge had granted the respondents' cross-motion for relief permitting implementation of the settlement terms.

The appellant raised four main grounds of appeal: (1) the motion judge erred in requiring leave to bring the motion; (2) the motion judge erred in rejecting her argument that the Final Order should be set aside due to environmental dumping issues; (3) the motion judge erred in approving a Deed Transfer that created an easement not contemplated by the Final Order; and (4) the motion judge erred in approving a Conservation Easement that was substantially more restrictive than agreed.

The Court of Appeal dismissed all grounds of appeal and upheld the motion judge's decision.

The appellant general contractor appealed from summary judgments granted to two sub-subcontractors in a consolidated construction lien action.

The appellant argued the motion judge erred by granting judgment without evidence of the value of the work done by the subcontractor, misinterpreting the holdback provisions of the Construction Lien Act, and improperly placing the evidentiary burden on the appellant to establish the quantum of its liability.

The Divisional Court dismissed the appeal, finding that the liens were not restricted to the basic holdback and that the appellant failed to provide evidence of the amount it owed to the subcontractor, which was a fact within its knowledge.

The applicants successfully brought a motion finding the respondents in civil contempt for failing to return nine vehicles as ordered by the court.

In this decision, the court determined the costs of the contempt motion and the appropriate sanction.

The court awarded the applicants costs on a substantial indemnity basis, fixed at $42,633.25, noting the respondents' deliberate but not entirely egregious conduct.

For the contempt sanction, applying the Boily factors, the court imposed fines of $10,000 on the corporate respondent and $2,500 on the individual respondent, payable to the Provincial Treasurer, to reflect deterrence and denunciation while acknowledging the contempt had since been purged.

The appellants appealed an order dismissing their motion for leave to commence a derivative action under s. 246 of the Business Corporations Act.

The motions judge found the motion was statute-barred because it was brought after the expiry of the limitation period.

The Divisional Court dismissed the appeal, holding that the motions judge correctly applied the Supreme Court of Canada's decision in the CIBC trilogy, which established that a nunc pro tunc order is not available when a motion for leave is filed after the limitation period has expired.

The applicants brought a motion to find the respondents HK United Trucks Limited and Karnail Singh Mand in civil contempt for failing to comply with a prior court order requiring them to return 9 commercial trucks.

The respondents argued they were bona fide purchasers for value without notice and needed the trucks to complete contracts.

The court rejected these arguments, finding that the respondents knew or ought to have known the trucks belonged to the applicant corporation.

The court found the respondents in contempt beyond a reasonable doubt and ordered them to park and secure the trucks pending a sanction hearing.

The appellants appealed an order dismissing their motion for leave to commence a derivative action under the Business Corporations Act (OBCA) as statute-barred.

The Court of Appeal determined it lacked jurisdiction to hear the appeal, as section 255 of the OBCA directs appeals of orders made under the Act to the Divisional Court.

The appeal was transferred to the Divisional Court.

The appellant appealed a Small Claims Court decision dismissing his action for damages arising from allegedly negligent installation of vinyl siding by the respondent.

The trial judge found the appellant failed to prove negligence, noting ten years without issues and evidence of poor maintenance.

On appeal, the appellant argued the trial judge erred by not deciding the case on breach of contract.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the negligence analysis and holding that breach of contract was never pleaded or argued at trial.

The defendants moved for dismissal of the action under Rule 20, while the plaintiff opposed and sought judgment against the individual defendant and a newly incorporated entity, relying on the oppression remedy under the Ontario Business Corporations Act.

The court found that the individual defendant, after obtaining a default judgment against his initial corporation, ceased its commercial activity and transferred its goodwill and operations to a new corporation he solely directed, without satisfying the judgment.

The court applied the oppression remedy, concluding that the individual defendant abandoned the best interests of the previous corporation in favour of his own, thereby unfairly disregarding the plaintiff's interests as a creditor.

The appellant appealed an order dismissing his action under Rules 57.03(2) and 60.12 of the Rules of Civil Procedure for failing to pay outstanding costs awards.

The appellant argued that some costs were discharged by a previous order, raised historical grievances, and alleged bias against the motion judge.

The Court of Appeal found no merit in these arguments, noting the motion judge applied the correct test and appropriately exercised his discretion given the appellant offered no reason for non-payment.

The appeal was dismissed with costs.