James R. Smith

The court determined costs for two summary judgment motions.

Arcamm Electrical Services Ltd. successfully obtained judgment against 4342 Queen St Niagara Holdings Inc. for unpaid invoices, while its claim against Avison Young Real Estate Management Services LP was dismissed as Avison was found to be Queen's agent.

Avison Young also successfully obtained indemnification from 4342 Queen St Niagara Holdings Inc. for its legal costs.

The court awarded partial indemnity costs to Arcamm against Queen, partial indemnity costs to Avison against Queen (for defending Arcamm's claim via a Sanderson Order), and full indemnity costs to Avison against Queen (for its successful indemnification claim).

The decision emphasized Queen's conduct in unnecessarily complicating the proceedings and refusing to admit facts.

This decision concerns a summary judgment motion brought by Avison Young Real Estate Management Services LP (Avison) against 4342 Queen St Niagara Holdings Inc. (Queen) on Avison's crossclaim for indemnification.

Avison, as property manager for Queen, had retained Arcamm Electrical Services Ltd. to restore power to Queen's property after an electrical failure.

Arcamm was not paid and sued both Avison and Queen.

In a prior decision, Queen was found liable to Arcamm, but Avison was not.

Avison sought indemnification from Queen under their Real Estate Management Services Agreement (REMSA).

Queen argued that the indemnity provisions did not apply due to lack of a written contract with Arcamm and alleged Avison's gross negligence.

The court found that Avison had "executed" a contract with Arcamm in the ordinary sense, triggering Queen's indemnity obligations under sections 4.11 and 5.4 of the REMSA.

The court rejected Queen's argument that section 11.1 (gross negligence exception) applied to Arcamm's debt claim, finding it pertained to different circumstances.

Queen's crossclaim against Avison was dismissed, and Avison's motion for summary judgment on its crossclaim for indemnification was granted, including past and future legal costs.

Arcamm Electrical Services Ltd. brought a summary judgment motion against Avison Young Real Estate Management Services LP and 4342 Queen St Niagara Holdings Inc. for unpaid invoices related to emergency electrical repairs and equipment replacement at a commercial property.

The court granted summary judgment against 4342 Queen St Niagara Holdings Inc. (Queen), finding it liable as the owner under the Construction Act and in contract for the services and materials provided.

The court dismissed the claim against Avison Young Real Estate Management Services LP (Avison), concluding that Avison acted solely as Queen's agent and was not an "owner" under the Act, nor liable in contract.

The court also addressed the applicability of prompt payment provisions, finding Arcamm's invoices were not "proper invoices" under the Act, and clarified that the decision on Arcamm's invoices would not prejudice related subrogated claims regarding transformer damage.

The Court of Appeal for Ontario dismissed an appeal by CTO Boost Inc. against a summary judgment enforcing a settlement agreement with Idea Notion Development Inc. CTO had repudiated the settlement, claiming fraudulent invoices, after accepting an offer.

The appeal challenged the admissibility of "without prejudice" communications, the motion judge's evidence analysis, the fraudulent misrepresentation defence, and the exercise of discretion.

The Court affirmed the motion judge's findings, holding that "without prejudice" documents were admissible to prove the settlement's existence and that CTO entered the agreement with knowledge of potential discrepancies.

The plaintiff brought a motion for summary judgment to enforce a settlement agreement reached regarding unpaid invoices for software development services.

The defendants repudiated the settlement, arguing it was conditional, induced by duress or fraud, and that prior settlement communications were privileged.

The court found the communications were not privileged as they were necessary to prove the settlement.

The court held that an objective reading of the communications showed a binding agreement on all essential terms, and rejected the defendants' claims of duress and fraud, noting the defendants chose to settle despite having concerns about the invoices.

The motion was granted and the settlement enforced for $200,000.

The defendants brought a motion to discharge the plaintiff's construction lien for pre-publication work and to vacate the remaining lien for post-publication work upon payment into court.

The plaintiff argued that the defendants were precluded by promissory estoppel from relying on the statutory limitation period to perfect the lien, based on a promise to pay made during settlement discussions.

The court found that the pre-publication lien had expired because it was not perfected in time.

The court held that promissory estoppel did not apply because the defendants never promised to waive or not rely on the limitation period.

The motion was granted, the pre-publication lien was discharged, and the post-publication lien was ordered vacated upon payment into court.

The appellants appealed a judgment ordering them to repay $120,000 to the respondents.

The parties had entered into a property sale agreement, and the appellants had borrowed $120,000 from the respondents, which was to be repaid through the closing of the sale.

When the sale did not close, the respondents sought return of the funds.

The application judge found the $120,000 was a loan, not a deposit, and ordered repayment.

The appellants argued the entire sum was a forfeited deposit and that the respondents failed to demonstrate readiness to complete the purchase.

The Court of Appeal upheld the judgment, finding the evidence clearly established the $120,000 was a loan to be repaid either through the sale or directly if the sale did not complete.

The plaintiff sought leave to appeal an order that set aside a Mareva injunction.

The original injunction was granted ex parte without proper service of the originating process and without full disclosure of the defendants' anticipated position.

The court dismissed the motion for leave to appeal, finding no conflicting decisions or serious doubt regarding the correctness of the lower court's decision on either improper service or failure of full and fair disclosure.

The court also upheld the costs award from the prior motion.

The defendants moved to dismiss the plaintiff's construction lien actions or, alternatively, to stay them, arguing the liens had expired due to the plaintiff's corporate dissolution and the actions being struck from or not added to the trial list.

The court found that the liens had not expired because the actions were properly 'set down for trial' as per the Construction Lien Act, distinguishing this from being placed on a trial list.

However, the court granted the alternative relief, staying the actions until the plaintiff corporation was revived or obtained leave to proceed under the Corporations Information Act, as it lacked standing due to dissolution.

The appellant, a defendant and plaintiff by counterclaim, appealed a Master's order granting the respondent architect leave to bring a motion for security for costs after the action was set down for trial, and ordering the appellant to post $115,000 in security.

The Superior Court dismissed the appeal, finding no error in the Master's decision to grant leave, her conclusion that the counterclaim for $5 million in lost profits was not inextricably linked to the defence against the architect's claim for unpaid fees, or her assessment of the quantum of security.

Following multiple prior orders in a corporate dispute between business partners, the successful party sought costs on a full indemnity basis due to the opposing party’s repeated non‑compliance with court orders and obstructive conduct.

The court reviewed the governing factors under Rule 57.01 of the Rules of Civil Procedure and the jurisprudence on when full indemnity costs are appropriate.

Although the respondent’s conduct caused delay and required numerous court appearances, the court found it did not rise to the egregious level required for full indemnity costs such as fraud or deception of the court.

Considering the respondent’s non‑compliance and litigation conduct, the court awarded costs on a substantial indemnity basis.

Costs were fixed at $20,431.14.

The defendant brought a motion for summary judgment dismissing a claim for breach of confidence.

The plaintiff alleged that information obtained during a visit to its premises was confidential and later misused by a competitor.

Applying the elements of breach of confidence from Lac Minerals Ltd. v. International Corona Resources Ltd., the court found the information—such as pricing, room layout, staffing, and facilities—was either publicly available or trivial and therefore not confidential.

The court further found no evidence that the defendant used or relied upon the information in its business operations.

Summary judgment was granted and the claim against the moving defendant was dismissed.