James A. LeBer

The plaintiff general contractor moved for summary judgment to dismiss the defendant City's set-off defences.

The City's counterclaim had previously been permanently stayed due to an abuse of process for failing to disclose settlement agreements with third-party subtrades.

The City subsequently amended its defence to plead both legal and equitable set-off based on the same allegations.

The court granted the motion, finding that legal set-off was unavailable because the City's claims were for unliquidated damages rather than debts.

The court also dismissed the equitable set-off defence, holding that it would be manifestly unjust to allow the City to resurrect claims through a set-off defence that had been permanently stayed for abuse of process.

The proposed intervenor, Keith Bannon, a former lawyer for the City of Windsor, sought leave under Rule 13.01 of the Rules of Civil Procedure to intervene as an added party in a pending motion.

This pending motion concerned the legal consequences of a prior decision that permanently stayed the City's counterclaim due to abuse of process related to undisclosed settlement agreements.

The court found that while Bannon might be adversely affected by the judgment due to potential professional negligence liability (satisfying Rule 13.01(1)(b)), his intervention would not offer a useful contribution and would cause undue delay and prejudice in what was an essentially private dispute.

The court emphasized that intervention in private lawsuits is granted "sparingly or rarely." Consequently, the motion for intervention was dismissed, and Bannon was ordered to pay costs to Southside Construction.

The Minister of Transportation (MTO) sued J & P Leveque Bros.

Haulage Ltd. (Leveque) for approximately $1.8 million, representing a refund of a provisional award made by a Referee Panel under a construction contract.

Leveque brought a motion for summary judgment, arguing that MTO's claim was time-barred by a contractual limitation period within their business agreement, which supplanted the statutory limitation period under the Limitations Act, 2002.

The court agreed with Leveque, finding that the contractual limitation period was clear and applicable, and that MTO had failed to comply with its own contract's timelines.

The court dismissed MTO's arguments that Leveque caused the delay or that MTO should be granted relief from forfeiture.

The court fixed costs following a successful motion by Southside Construction and the Architects to stay the City of Windsor's claims due to abuse of process.

The City had failed to immediately disclose complete terms of settlement agreements with third-party subtrades, which fundamentally altered the litigation landscape.

The court found the City's conduct egregious and awarded substantial indemnity costs to Southside and the Architects, emphasizing that such an elevated scale was appropriate to express judicial disapproval and deter similar future behaviour, though not egregious enough for full indemnity costs.

The moving parties (defendants) brought a motion for leave to appeal the orders of Belobaba J. dated January 6, 2022.

The Divisional Court dismissed the motion for leave to appeal, with costs fixed at $5,000 payable to the Foodland plaintiffs.

The City of Windsor entered into confidential settlement agreements with eight third-party subcontractors, which included indemnities and assumption of liabilities, fundamentally altering the litigation landscape.

The City failed to immediately and fully disclose these agreements to the general contractor (Southside Construction) and the architects, despite multiple opportunities and court orders.

The court found this non-disclosure constituted an abuse of process, as it created a circularity in claims and prejudiced the non-settling parties by forcing them to incur significant costs to uncover the true nature of the agreements.

This motion concerned compelling answers to outstanding undertakings, under advisements, and refusals from the defendants' discovery.

The applicants, Symtech and Kelson, sought documents related to delays caused by a bankrupt subcontractor (Blackrock), an insurance claim made by the defendants (Bird) on a "Subguard" policy, and acceleration change orders to other trades.

The defendants resisted on grounds of relevance and privilege.

The court ordered production of documents related to Blackrock delays, the Subguard claim, and acceleration change orders, finding them relevant.

However, the court upheld litigation and settlement privilege for Bird's internal assessments of Symtech and Kelson's claims, provided these privileged documents are itemized.

The appellant, Gordon Dunk Farms Ltd., appealed a summary judgment decision that found its action for negligence and breach of contract against the respondents (designers, contractors, and concrete workers) was statute-barred due to the expiration of the limitation period.

The action stemmed from the collapse of a hog barn.

The motion judge found that the appellant's principals knew or ought to have known the material facts constituting their claim by May 12, 2014, more than two years before the action was commenced on May 24, 2016.

The Court of Appeal affirmed that a "claim" under the Limitations Act, 2002, does not require knowledge of every specific act or omission, but rather sufficient facts to draw a plausible inference of liability.

The appeal was dismissed, confirming the action was statute-barred against all respondents.

The moving party, Her Majesty the Queen in Right of Ontario, brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $3,969.69.

This appeal concerned the interpretation of complex, interrelated standard form agreements common in the road construction industry.

The Court of Appeal for Ontario affirmed the application judge's interpretation of these contractual provisions, finding no error in the lower court's reasoning.

The appeal was dismissed, and costs were awarded to the respondent.

The court issued a procedural endorsement setting a timetable for the completion of pleadings, cross-examinations, and document production.

The court also scheduled a motion date to address issues including striking pleadings, duplicitous claims, and severing a third-party action.

The defendant general contractor brought a motion to transfer the plaintiff subcontractor's action from Toronto to Brampton.

The action related to a construction project in Mississauga, where both parties performed their work and where related actions were already being case managed.

The court found that the plaintiff's choice of Toronto had no meaningful connection to the dispute other than the location of plaintiff's counsel.

The motion was granted as Brampton was a significantly better and more reasonable venue.

The applicant, Fermar Paving Limited, brought an application seeking a declaration that the Ministry of Transportation (MTO) was not entitled to claim liquidated damages for a delay in a road resurfacing contract, or alternatively, that the claim was unenforceable for a specific period.

The applicant argued that the respondent caused a concurrent delay by issuing and then cancelling "Additional Work" (CO #13) and that a prior settlement of Claim #3 did not bar the current application.

The court found that the settlement of Claim #3 was ambiguous regarding Claim #2 and applied *contra proferentem* against the respondent, thus allowing the applicant to proceed.

However, the court ultimately dismissed the application, finding that the "Additional Work" (CO #13) was irrelevant to the delay in completing the Automated Traffic Management System (ATMS) work, which was the "Controlling Operation." The court concluded that the applicant alone caused the delay and failed to properly request an extension of time as per the contract, thus the respondent was entitled to charge liquidated damages.

Multiple motions arising from five civil proceedings related to the Algo Centre Mall collapse sought transfer of a certified class action to Sault Ste.

Marie, trial together or common case management of related actions, and appointment of a single motions judge.

The court held that opt-out plaintiffs in separate proceedings lacked standing under rule 13.1.02 to seek transfer of the class action, and in any event failed to show that Sault Ste.

Marie was a significantly better venue than Toronto in the interest of justice.

The court further declined relief under s. 107(1) of the Courts of Justice Act because any transfer necessary to enable common case management or trial together would impose substantial cost and inefficiency, particularly given the existing class action case management structure.

Appointment of a rule 37.15 judge was also refused.

The appellants appealed a summary judgment dismissing their action against one defendant arising from alleged negligent golf course design and breach of contract in a golf course development project.

The Court of Appeal held that the claimed loss, being diminution in the value of ten acres within a larger parcel, could only be advanced by the owner of the affected land.

The evidence supported the motion judge’s findings that the limited partnership did not own the land and that one appellant acquired the parcel for fair market value after any diminution had already occurred.

Because any loss had been suffered by prior owners, the appellants had no claim against the respondent.

The appeal was dismissed with costs.

Following certification of a class proceeding arising from the collapse of a shopping mall, the court determined the appropriate allocation of costs for the certification motion.

Most defendants did not oppose certification and several entered into settlement agreements regarding costs.

The court distinguished between baseline costs that would have been incurred even if certification had proceeded on consent and additional costs caused by defendants who opposed certification.

The judge concluded that $140,000 represented additional costs attributable to opposition and allocated remaining unpaid costs primarily to the provincial government, whose extensive submissions challenged multiple certification criteria.

Costs were fixed at $15,000 against one defendant and $60,000 against the provincial government, with other amounts accounted for through settlements.

The plaintiffs brought a motion to certify a class action following the collapse of the Algo Centre Mall roof in Elliot Lake, which killed two people and injured dozens.

The proposed class included occupants, tenants, and employees of the mall.

The defendants included the mall owners, builders, engineers, and the Province of Ontario.

The Province opposed certification, arguing it owed no private law duty of care for negligent inspection.

The court found that the pleadings disclosed a valid cause of action for negligent inspection against the Province and that all five prerequisites for certification under s. 5(1) of the Class Proceedings Act, 1992 were met.

The action was certified as a class proceeding.

A construction contractor brought a motion seeking to stay its own court action so that the parties’ dispute over project delays and asbestos-related issues could proceed under the arbitration provisions contained in a CCDC-2 construction contract.

The defendant argued the motion was brought too late and that the contractual dispute resolution process had been discharged.

The court held that although s. 7 of the Arbitration Act, 1991 did not apply because the moving party had commenced the action, the court retained authority under s. 106 of the Courts of Justice Act to stay the proceeding.

Given the strong policy favouring arbitration and the parties’ contractual agreement to resolve disputes through the contract’s dispute resolution process culminating in arbitration, the court exercised its discretion to stay the action.

Issues regarding delay or compliance with contractual timelines were matters for the arbitrator.

The plaintiffs brought a motion for leave to amend their statement of claim in a long‑standing breach of contract action relating to highway reconstruction and alleged misrepresentation of available rock quantities.

The defendant Crown opposed a proposed amendment referring to numerous similar contractor claims against the Ministry, arguing the amendment was irrelevant and would trigger extensive documentary production and prejudice.

The court held that evidence of similar claims existing at the time the contract was executed could be relevant to whether the Ministry knew or ought to have known its representations were inaccurate.

However, claims made after execution of the contract were not relevant.

Leave to amend was granted with the limitation that references to post‑contract claims be removed.

A construction contractor sued a municipality for damages arising from delay in authorizing work after the contractor’s tender was accepted for a landfill leachate system project.

The court held that the municipality was responsible for two overlapping periods of delay: the late communication of the contract award and the municipality’s failure to resolve whether the contractor’s proposed construction methodology formed part of the contract.

Interpreting the tender documents, the court concluded that the methodology submission was required to be incorporated into the contract and that the contractor was justified in insisting upon its inclusion before commencing work.

The delays forced a split construction schedule and caused financial losses including lost revenue, escalation costs, refinancing expenses, and equipment rentals.

Damages were assessed using the plaintiff’s expert methodology and awarded accordingly.