J. Allingham

Two actions arose from a construction project where Kelson subcontracted Amar for sheet metal work, and Amar sub-subcontracted Sjostrom for labour.

Sjostrom walked off the job due to non-payment by Amar.

Kelson then directly engaged Sjostrom to complete the work and issued a change order reducing Amar's contract price.

Sjostrom claimed unpaid amounts from Kelson, while Amar claimed the unpaid balance of its subcontract.

The court found that Kelson and Sjostrom formed a direct oral contract, but Sjostrom failed to prove its claimed hours and its action was dismissed.

The court also found that the change order removed the remaining labour from Amar's scope of work, and Kelson breached its subcontract with Amar by non-payment.

Amar was awarded $209,737.88.

Following a motion to compel answers to undertakings and refusals from examinations for discovery, both parties sought costs.

The defendants had breached a consent timetable order by failing to answer undertakings for over 17 months, only providing answers in their responding materials.

The Master awarded the plaintiff $2,000 in costs, noting the motion was necessary to compel the undertakings and the defendants provided no satisfactory explanation for their delay.

The defendants/plaintiffs by counterclaim (NAD) brought a motion to strike the plaintiff's (HTS) pleadings for delay and failure to produce documents, and sought an interlocutory injunction to prevent HTS from using NAD's trademarks or confusingly similar marks to sell air diffusers.

The court declined to strike HTS's pleadings, giving them one final opportunity to produce a complete Affidavit of Documents.

However, the court granted the interlocutory injunction, finding that NAD established a strong prima facie case of passing off, irreparable harm due to potential market loss and unquantifiable damages, and that the balance of convenience favoured granting the injunction despite NAD's delay in bringing the motion.