Jeffrey W. Nanson

The defendant, Thompson Global Group Ltd., brought a motion to set aside a noting in default and default judgment dated November 26, 2024, in a construction lien action.

The plaintiff, ZMAC Plumbing Inc., had registered a construction lien and obtained a default judgment after the defendant failed to respond to the statement of claim.

The defendant argued it did not receive the statement of claim because it had moved its business address but failed to update its registered address with Corporations Canada.

The court found the defendant had a plausible excuse for the default, acted promptly upon learning of the judgment, had an arguable defence on the merits regarding incomplete work and inferior materials, and that the interests of justice favored setting aside the default.

The court granted the motion and ordered the defendant to file its statement of defence within twenty days.

Each party was ordered to bear its own costs of the motion, but the defendant was ordered to pay the plaintiff's costs thrown away in the amount of $3,500.00 all-inclusive.

The court found Bryan Lozon in contempt for failing to deliver three of four specific snowmobiles as required by a Court of Appeal order, concluding that he had tampered with VIN tags and delivered incomplete or incorrect items.

The decision reviews the factual background, the evidence regarding each snowmobile, and the legal test for contempt, ultimately finding that Bryan's explanations were not credible and that he had wilfully failed to comply with the order.

The respondent Penelope Provost was successful on a motion to transfer the proceeding from London to Chatham and sought her costs on a substantial or full indemnity basis.

The applicant and other respondents opposed, arguing for no costs or costs in the cause due to divided success and reasonable conduct.

The court found no reprehensible conduct to justify an elevated scale and fixed costs on a partial indemnity basis at $2,500, payable in the cause by the applicant and one respondent jointly and severally.

This endorsement addresses the issue of costs following a summary trial where judgment was granted to the plaintiff against both corporate and personal defendants for $50,000 each, plus interest, under a debenture and personal guarantee respectively.

The plaintiff sought full or substantial indemnity costs, relying on a contractual provision in the guarantee and a prior offer to settle.

The defendants argued the costs were excessive.

The court, exercising its broad discretion under the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, found the plaintiff's costs reasonable and warranted a higher scale due to the defendant's failure to admit a key fact (personal guarantee) that prolonged the trial.

The court awarded the plaintiff $55,000 in costs, inclusive of HST and disbursements.

The respondent brought a motion to transfer the applicant's estate litigation proceeding from London to Chatham.

The court applied the holistic approach under Rule 13.1.02(2) of the Rules of Civil Procedure and found that the respondent established Chatham was a significantly better venue, given that all parties and the subject property were located in Chatham-Kent, and related proceedings were already commenced there.

The motion to transfer was granted.

The respondent's additional requests to appoint a case management judge and direct a case conference were adjourned as premature pending a scheduled consolidation motion.

The plaintiff brought an action to collect on a $50,000 loan to the corporate defendant and a personal guarantee allegedly signed by the individual defendant.

The defendants argued the claim was statute-barred under the Limitations Act and that the individual defendant's signature on the guarantee was forged.

The court found the loan was not a demand obligation, meaning the limitation period had not expired.

Although a handwriting expert confirmed the signature on the guarantee was likely forged, the court found the individual defendant had authorized or acquiesced to others signing on his behalf and had a settled intention to guarantee the loan.

Judgment was granted against both defendants.

The plaintiffs brought a motion for summary judgment seeking specific performance of an Agreement of Purchase and Sale for a residential property.

The defendant vendor attempted to unilaterally terminate the agreement and failed to close the transaction, arguing that the closing date fell on a holiday and no agreement was reached for a new date.

The court found that the defendant committed an anticipatory breach and that the plaintiffs were ready, willing, and able to close on the next business day.

The court granted summary judgment and ordered specific performance, finding the property was uniquely suited to the plaintiffs and damages would be inadequate.

Two school boards applied for a declaration that the force majeure clauses in their commercial leases with the respondent landlord applied to abate rent during the COVID-19 pandemic lockdown from March 17, 2020, to August 11, 2020.

The landlord argued the clauses excused it from providing the premises but did not excuse the tenants from paying rent.

The court applied principles of contract interpretation and found that the pandemic-induced government lockdown was a triggering event that prevented the landlord from providing the leased space.

Under the specific wording of the leases, this excused the landlord's performance and abated the tenants' rent obligations for the lockdown period.

The application was granted.

The applicant sought an order requiring the respondent school board to consent to the assignment of a 99-year parking lot licence to a prospective purchaser of the applicant's property.

The respondent refused, arguing the agreement was effectively a lease that violated the subdivision control provisions of the Planning Act.

The court found the agreement was a valid licence, not a lease, and fell within the exception in s. 50(9) of the Planning Act for structures.

The application was allowed, and the respondent was ordered to consent to the assignment.

The plaintiff purchased a commercial property to operate a hair salon.

She sued her real estate agent and his brokerage for negligent misrepresentation, alleging the agent falsely guaranteed that four specific parking spaces on an adjacent lot were included in the purchase.

The court dismissed the action, finding the plaintiff's evidence unreliable and accepting the agent's evidence that he only provided an equivocal response and promised to follow up with the listing agent.

The court found the agent did not make the alleged unequivocal statements of fact.

The action was dismissed, with damages provisionally assessed at $7,696 for the value of the parking spaces had liability been found.

A general contractor moved to discharge a supplier’s construction lien, cancel or reduce the security posted to vacate the lien, and discharge a subcontractor’s separate lien.

The court held that the supplier’s lien was properly perfected despite the contractor not being named as a defendant, because the Construction Lien Act does not require joinder of a contractor lacking contractual privity with the lien claimant.

The court also refused to reduce the lien bond posted under s.44, finding the owner’s holdback liability exceeded the lien amount and therefore the full security remained appropriate.

The subcontractor consented to discharge of its lien if the bond was not reduced.

The court discharged the subcontractor’s lien but otherwise dismissed the motion.

The plaintiff requested a status hearing after receiving a status notice indicating the action would be dismissed for delay.

The plaintiff explained the delay was due to the sole director's separation, loss of confidence in former counsel, and financial difficulties.

The court found the plaintiff adequately explained the delay and that the defendant would suffer no non-compensable prejudice if the action proceeded.

The court declined to dismiss the action, ordered a timetable for the remaining steps, and awarded no costs.