James A. LeBer

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 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.

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 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.

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.

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.