Irwin Albert Duncan

Following the dismissal of their appeals regarding construction lien rights, the appellants and respondents made written submissions on costs.

The Divisional Court fixed the respondent Rumble's costs at $20,515.72 on a partial indemnity basis, payable by Cassidy and R & A. The court found the respondent Dana's claim for $41,024.52 excessive given the lack of novel arguments on appeal, and fixed Dana's costs at $15,800.00, payable by Kennedy.

The appellants appealed a trial judgment declaring that their claims for work done in assembling and installing a massive truck frame assembly line at the respondent's plant were not lienable under the Construction Lien Act.

The trial judge found that the assembly line was manufacturing equipment and not an 'improvement' to the land or building.

The Divisional Court majority upheld the trial judge's decision, finding no error in his application of the law to the facts.

A dissenting judge would have allowed the appeal, finding the assembly line was an improvement given its size, cost, and degree of attachment to the premises.

The parties, equal shareholders in a land development company, reached a deadlock.

The trial judge ordered the company wound up and gave the appellant the first right to buy the respondent's shares at fair market value.

After the parties failed to agree on a price, the trial judge fixed the share value and ordered a descending auction if the rights of refusal were not exercised.

The Divisional Court set aside this order and directed a public auction.

The Court of Appeal allowed the appeal, finding that the trial judge erred by abandoning the valuation mechanism without notice, and the Divisional Court erred by removing the appellant's right of first refusal.

The matter was remitted to the trial judge.

The appellant general contractor appealed a trial judgment awarding the respondent electrical subcontractor $45,000 for loss of profits due to breach of contract.

The appellant had carried the respondent's bid in its tender but later refused to use the respondent, demanding 100% performance bonds which the respondent could not obtain.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant failed to establish a reasonable objection to contracting with the respondent and was not entitled to demand 100% bonding when the prime contract only required 50%.

The appellant mortgagee appealed a trial judgment that declared its mortgage void and granted priority to construction lien claimants.

The trial judge found the mortgage contravened the financial assistance provisions of the OBCA, the Fraudulent Conveyances Act, and the Assignments and Preferences Act, as the mortgagor was insolvent and the mortgagee failed to conduct due diligence.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or application of legal principles.

A cross-appeal by a lien claimant regarding trial costs was allowed, and its costs were increased.

The union sought a declaration that three companies (Metalcraft, Manufacturing, and Trillium) were related employers under section 12 of the Employment Standards Act, and therefore jointly and severally liable for over $2 million in unpaid wages, termination, and severance pay owed to former employees of the bankrupt Metalcraft.

The Board found that the companies were related due to common ownership, common management by a key individual, and similar business operations.

The Board further found that the financial arrangements among the companies, driven by their primary lender, had the effect of defeating the purpose of the Act by shielding the assets of the solvent companies while leaving the employees of the bankrupt company as unsecured creditors.

The companies were declared related and jointly and severally liable for the amounts owed.

The complainant employer filed a complaint under section 89(7) of the Labour Relations Act alleging that the respondent union and employee breached the confidentiality clause of a prior settlement agreement.

The settlement, which resolved an occupational health and safety complaint, required the employer to pay $7,500 to the union and included a strict confidentiality provision.

Months later, the employee and a union official disclosed to a newspaper reporter and another employee that a cash settlement had been paid.

The Board found that disclosing the fact of a cash payment, even without specifying the amount or the exact payee, constituted a breach of the confidentiality requirement.

The Board ordered the union to repay the $7,500 to the employer as stipulated in the settlement.

The applicant employer sought declaratory relief under section 92 of the Labour Relations Act regarding an alleged work slowdown by the respondent union.

The Board dismissed the application, noting that the alleged slowdown had ended nine months before the application was filed and the union's bargaining rights had since been terminated.

The Board held that it would not be in the interests of sound labour relations to grant declaratory relief where a party delays bringing the application until long after the allegedly unlawful conduct has ceased.

The petitioners requested that their application for termination of bargaining rights be heard prior to the union's previously filed application for direction of the settlement of a first contract by arbitration.

The Board considered its discretion under section 40a(22) of the Labour Relations Act.

Noting that the first contract application had already commenced and three days of evidence had been heard before it was adjourned for mediation, the Board ruled it would be most appropriate to continue hearing the first contract application first.

The termination application was adjourned pending the outcome.