Jennifer L. Siemon

The defendants brought a motion for security for costs against the plaintiff estate.

The estate sued the defendants, alleging that the defendant lawyer erroneously advised the estate's executor that the estate would receive half the proceeds from the sale of a property owned by the deceased's spouse.

In a related family law proceeding, the court had already determined that the deceased and his spouse were not separated, meaning the estate had no entitlement to the proceeds.

The court found that the estate had insufficient assets to pay a costs award and that its claim was devoid of practical merit.

The motion was granted, and the estate was ordered to post security for costs in tranches.

The defendant 35 Mercer Limited brought a motion to reduce the construction lien of the plaintiff Urban Electrical Contractors (UEC) by $4,333,708.96.

Prior to the hearing, Mercer, UEC, and Urban Integrated Group Inc. (UIG) settled the motion on terms reducing UEC's lien security by $3,231,464.75.

Subsequently, Mercer and UEC reached a separate settlement to fully discharge UEC's lien and return all security.

However, UIG opposed the full return of security because UIG's own liens had been vacated with reduced security that accounted for UEC's lien security already posted.

The court held that security for one lien cannot be returned without considering other lien claimants affected by that return, and ordered reduction only to the extent of UIG's consent.

The court also declined to award costs, finding the parties had settled the motion without judicial intervention on the merits.

This motion, part of a larger reference concerning the Nobu Residences condominium complex, addressed the application of the transition provisions in section 87.3 of the Construction Act.

The core issue was whether the former Construction Lien Act (CLA) or the current Construction Act applied to the improvement and associated liens, which directly impacted lien timeliness.

The owner, 35 Mercer Limited, the contractor, Urban Integrated Group Inc., and a lien claimant, Brunco Insulation Ltd., argued for the application of the CLA, while Desco Plumbing and Heating Supply Inc. contended the current Construction Act should apply.

The court found that the CLA continues to apply to the improvement and all liens arising from it, based on evidence that a procurement process for the improvement commenced before July 1, 2018.

The court rejected arguments that the owner's affidavit was deficient, that ex parte vacating orders were binding, that the onus to provide transition dates was "murky" or that project delays like the COVID-19 pandemic should influence the application of section 87.3.

The appellants, long-term tenants of over 42 years, appealed a Landlord and Tenant Board decision terminating their tenancy due to severe clutter and fire hazards in their unit.

The tenants argued that the Board denied them procedural fairness by refusing an adjournment, failing to follow proper review procedures, and issuing an unconditional eviction order.

The Divisional Court dismissed the appeal, finding no errors of law.

The Court held that the Board's refusal to grant an adjournment was a reasonable exercise of discretion, the review process was fair, and the factual findings regarding the ongoing fire hazard were supported by the evidence.

The Board had the authority to issue an unconditional eviction order given the tenants' failure to de-clutter the unit over a two-year period.

Wessuc Inc. sued Todd Brothers Contracting Limited and The Guarantee Company of North America (GCNA) for breach of contract, unjust enrichment, and breach of trust related to a sludge removal contract.

Todd counterclaimed for Wessuc's failure to complete the contract.

The court found that the contract was a lump sum agreement for 6100 m³ of sludge removal, not a per-unit price for total volume including water.

Wessuc abandoned the project by ceasing work and failing to provide a plan for completion, entitling Todd to terminate the contract.

Wessuc's claim for damages and quantum meruit was dismissed as it did not substantially complete the work.

Todd's counterclaim for costs incurred to complete Wessuc's work, including cattail removal, equipment, fuel spill cleanup, and sand/sawdust for drying sludge, was allowed for $53,000.

GCNA was found to have no obligations under the bond due to Wessuc's failure to provide timely and adequate notice.

Wessuc Inc. brought a motion on the second day of trial to withdraw several admissions made in its Amended Reply and Defence to Amended Counterclaim.

The admissions were inconsistent with Wessuc's main pleadings, particularly regarding the contract terms (unit price vs. capped price) and notice under a labour and material payment bond.

The court applied the three-part test for withdrawing admissions (triable issue, inadvertence, and lack of uncompensable prejudice).

The court found that the proposed amendments raised triable issues, the admissions were due to "breathtaking" inadvertence by counsel, and there was no uncompensable prejudice to the defendants, who had continued preparing for trial on the contested issues.

The motion was granted, allowing Wessuc to withdraw the admissions.

No costs were awarded for the two days of court time lost due to the motion, as both parties were deemed at fault for the delay.

The defendants by counterclaim brought motions to strike the plaintiff by counterclaim's pleadings for disclosing no reasonable cause of action.

The underlying dispute involved a loan to a personal injury lawyer whose practice failed due to illness.

The plaintiff by counterclaim alleged that the lender and its counsel breached undertakings and fiduciary duties by failing to take over his practice.

The court struck the counterclaim against the moving parties, finding no facts pleaded to support the alleged causes of action, but granted leave to amend.

The plaintiff brought an action for fraud and misappropriation against a former employee and the operators of a gas station, alleging a scheme to overcharge for fuel.

Both parties brought motions to compel answers to undertakings and refusals from examinations for discovery.

The court ordered both parties to answer specific questions, directed the defendant to re-attend for a brief further examination, and denied the defendants' request to examine a second representative of the plaintiff.

The plaintiff was awarded $3,500 in costs.

The defendant Maryvale brought a motion to dismiss the plaintiff's action due to his failure to pay two costs awards totaling $51,500 arising from a successful appeal and a dismissed leave application to the Supreme Court of Canada.

The plaintiff argued the court lacked jurisdiction under Rules 57.03 and 60.12 as the costs orders did not arise from a contested motion or interlocutory order.

The court found that even if it had jurisdiction, dismissing the action would not be just, as the Court of Appeal had ordered a new trial without making costs payment a precondition, the costs were not sanctions for bad behaviour, the plaintiff's claim was not devoid of merit, and the plaintiff was impecunious.

At a case conference, the plaintiff sought to schedule a pre-trial and set the matter down for trial.

The defendant objected, noting the plaintiff had just served an Amended Statement of Claim, which would require an amended defence and potentially further discoveries.

The court declined to schedule the pre-trial, directing the parties to follow the Rules of Civil Procedure regarding amended pleadings and to move the matter forward without relying on judicial supervision unless necessary.

The defendants, Dr. Yasser Khan, Dr. Yasser A. Khan Medicine Professional Corporation, and Carrot Eye Surgery Clinic, brought motions to set aside a noting in default entered by the self-represented plaintiffs, Larry Westcott and Sharon Lea Westcott.

The court applied the test for setting aside a noting in default, considering the behavior of both parties, the length and reasons for delay, the complexity and value of the claim, and the absence of prejudice to the plaintiffs.

The court found that the defendants acted promptly upon discovering the default, intended to defend the action, and that the plaintiffs' conduct (noting default without prior notice, then demanding excessive costs for consent) was not ideal.

Given the complexity of the medical negligence claim and the significant damages sought, the court emphasized the preference for resolving disputes on their merits.

The motions were granted, setting aside the noting in default, with no costs awarded to any party.

The defendant brought a successful motion to stay a 2019 action as an abuse of process and to consolidate it with a 2017 action.

The defendant sought costs on a substantial indemnity basis, citing a Rule 49 offer, the plaintiff's lack of good faith, and uncooperative conduct.

The court declined to award substantial indemnity costs, finding it appropriate to clear the costs slate and apply normal principles.

Costs were awarded to the defendant on a partial indemnity basis in the amount of $70,000.

The minority shareholder of a family company commenced an action for an oppression remedy and asserted a derivative claim without obtaining leave.

The minority shareholder's holding company later commenced an action in debt against the family company.

The defendant in the first action moved to stay the second action as an abuse of process.

The court dismissed the motion to stay, instead ordering the two actions consolidated.

However, the court struck the derivative claim without leave to amend, finding it misconceived, ill-advised, and not brought in good faith.

The plaintiff, suing the school board for historical abuse by a teacher, brought a motion to compel production of his grade 3 class register and the last known contact information of his classmates.

The school board opposed, arguing that the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) prohibited disclosure, that the plaintiff had not exhausted his administrative remedies, and that the request was disproportionate and violated the classmates' privacy.

The court granted the motion, holding that civil discovery rights are distinct from MFIPPA access rights, the classmates were potential witnesses, and the privacy concerns did not outweigh the need for disclosure.

The court limited the scope of the school board's search for contact information to ensure proportionality.

The plaintiff in a construction lien action brought a motion for leave to amend its Statement of Claim to plead restitution unjust enrichment and for leave to file a document brief at trial.

The court denied leave to amend, finding that the proposed amendments were legally untenable because the Construction Lien Act prohibits joining non-contractual claims, such as pure restitution unjust enrichment, in a lien action.

However, the court granted the plaintiff leave to file its document brief at trial, as the documents were potentially relevant and any prejudice from late service was mitigated by a trial adjournment.

Costs of $7,500 were awarded to the responding party.