Jeffrey J. Long

The appellants, six defendants in a construction dispute, appealed a motion judge's decision dismissing their request to permanently stay the action.

They argued that a partial settlement between the plaintiff (respondent) and three other defendants (including an insurer) was not immediately disclosed, constituting an abuse of process.

The settlement involved the plaintiff assigning claims to the insurer and contemplating a Pierringer Agreement.

The motion judge found the settlement did not significantly alter the litigation dynamics to require immediate disclosure and that disclosure, if required, was immediate.

The Court of Appeal upheld the motion judge's finding that the settlement did not significantly alter the litigation dynamics, emphasizing that the claims against the settling parties were fundamentally distinct from those against the appellants, and the use of the term "Pierringer Agreement" was not determinative without a substantive change in adversarial positions to cooperative ones.

The appeal was dismissed.

The plaintiff, an unpaid trade supplier, brought a motion for default judgment against two defendants (ATD Contracting and Justin Rubatscher).

While the amount owed by ATD Contracting was adequately established, the court found insufficient evidence to grant judgment on the guarantee (due to the guarantee's effective date), interest calculations (conflicting rates and start dates), and trust remedies (lack of foundational evidence regarding funds received under the Construction Act).

The court declined to grant partial judgment, citing strong guidance from the Court of Appeal against it, and instead directed the matter to proceed by way of a viva voce hearing to address the evidentiary gaps and allow the case against all defendants, including a third defendant subject to bankruptcy proceedings, to be heard concurrently.

The plaintiffs in a construction defect action brought a mid-trial motion for leave to file additional and supplemental expert reports.

The plaintiffs sought to introduce a new structural engineering expert to address an allegation of bias raised against their original expert shortly before trial, and to file a supplemental report addressing newly discovered cracks.

The court dismissed the motion, finding that granting leave would cause undue delay and prejudice to the defendants, who would not have sufficient time to obtain responding reports before the trial resumed.

The court also noted that the plaintiffs failed to provide an adequate explanation for the delay in seeking leave.

The Bondfield Group, a major construction company, sought CCAA protection due to insolvency, over $1 billion in active contracts, and over 200 lawsuits.

The application was unopposed and resulted from extensive stakeholder negotiations.

The court granted an initial order for CCAA protection, including a stay of proceedings, approval of a tailored $8 million Debtor-in-Possession (DIP) facility funded by Zurich Insurance, an Administration Charge for professional fees, and a Directors' Charge for $3 million (excluding John Aquino).

The court emphasized the public interest in completing critical infrastructure projects and the preference for CCAA over receivership to preserve enterprise value.

The applicant sought a declaration that the respondent's hydro conduit and protective metal sleeve (U-guard) encroached upon her right of way and an order for their removal.

The parties owned neighbouring properties with a mutual driveway easement.

The applicant claimed the U-guard prevented her from using the right of way to park her vehicle.

The court found that the hydro conduit and U-guard were necessary fixtures and did not constitute an encroachment, as the measured width of the right of way remained sufficient.

Even if it were an encroachment, it did not cause substantial interference with the reasonable use of the right of way.

The application was dismissed with costs to the respondent.

The plaintiff, Concord Plumbing & Heating Ltd., brought a partial summary judgment motion against the defendant Northern Structures Ltd. for $114,959.01 in unpaid invoices for mechanical work on a Canadian Tire store construction project.

The motion was brought within a larger construction lien action.

The court first granted leave to bring the motion, finding it would expedite resolution if successful.

However, the court ultimately dismissed the partial summary judgment motion, citing the risk of duplicative proceedings and inconsistent findings due to intertwined issues with Canadian Tire's deficiency claims against Northern and Concord, and the complexity of determining deficiency claims on the record presented.

Following summary judgment dismissing two civil actions related to a proposed wind project, the successful defendants sought costs on a partial indemnity basis under Rule 57.01 of the Rules of Civil Procedure.

The plaintiffs argued that no costs should be awarded due to alleged novelty of the legal issues, broader public importance, assistance to future litigants, alleged reliance on unsworn materials, and the plaintiffs’ financial hardship.

The court rejected these submissions, holding that the claims were premature and unsupported by the evidentiary record, and that none of the factors justified departing from the usual rule that costs follow the event.

The court emphasized that unsuccessful litigants cannot avoid costs merely because their claims may generate guidance for future cases.

Costs were awarded as claimed by the defendants.

Neighbouring landowners brought actions seeking damages and injunctive relief arising from a proposed wind turbine development, alleging negligence, nuisance, trespass, and strict liability based on anticipated noise, health impacts, and property value loss.

The defendants moved for summary judgment dismissing the claims on the basis that the project had not yet received regulatory approval and had not been constructed.

The court held that the claims were premature because the alleged harms were speculative and no actionable tort had yet occurred.

Pure economic loss arising from public concern about a proposed development was not compensable absent proof of tortious conduct.

The plaintiffs also failed to meet the threshold for a quia timet injunction because there was no high probability that the alleged harms would occur given the ongoing regulatory approval process.

A court-appointed receiver-in-aid-of-execution sought an advance order immunizing it from personal liability for costs in litigation intended to recover assets allegedly concealed by the judgment debtor through family members, corporations, and third parties.

The receiver argued that the receivership estate lacked sufficient assets to cover potential adverse costs and that denying immunity would prevent the recovery action from proceeding, undermining access to justice.

The court reaffirmed the general rule that receivers and trustees who initiate litigation do so at their own risk unless indemnified by estate assets or creditors.

The proposed undertaking by the judgment creditor was found insufficient and unsupported by evidence of financial capacity.

The court held that the case did not present exceptional circumstances warranting a departure from the “loser pays” principle and refused to create a novel category of advance cost immunity orders.