Jill Simpson Snelgrove

CS Capital Limited, a secured creditor and mortgagee, brought a motion seeking a declaration that its mortgage had priority over construction lien claims on a property.

The court dismissed the motion, finding that the mortgage was not registered prior to the time the first lien arose in respect of the overall improvement project.

Furthermore, the court determined that the mortgage was a collateral mortgage securing a guarantee of a separate debt, and therefore no "advance" was made in respect of it for the purposes of priority under the Construction Act.

The appellant, Black & McDonald Limited, appealed two orders staying their proceedings in Ontario in favour of British Columbia as the more convenient forum.

The first action was against Eiffage Innovative Canada Inc. and individuals for breach of contract and breach of trust related to a construction subcontract.

The second was against Liberty Mutual Insurance Company under a payment bond.

The Court of Appeal found that the motion judge erred in interpreting an "exclusive jurisdiction" clause in the prime contract as applicable to the subcontract, and that the forum non conveniens factors did not clearly favour British Columbia, thus the high standard to displace the plaintiff's chosen jurisdiction was not met for the Eiffage action.

For the Liberty Mutual action, the Court found the forum selection clause in the payment bond ambiguous and resolved it against Liberty Mutual, also noting the public policy against multiple proceedings risking inconsistent findings.

The appeals were allowed, and the actions were permitted to proceed in Ontario.

The defendants brought a motion to stay two actions commenced in Ontario, arguing that British Columbia was the more appropriate forum based on contractual choice of law and jurisdiction clauses related to a construction project.

The plaintiff opposed the motion and brought a cross-motion to compel arbitration.

The court granted the defendants' motion to stay, finding that despite Ontario having jurisdiction simpliciter, British Columbia was the forum conveniens due to the clear contractual terms and the location where the factual matters arose.

The plaintiff's cross-motion to compel arbitration was dismissed, with the court noting that the arbitrator should determine their own jurisdiction in the first instance.

Costs were awarded to the successful defendants.

This decision addresses costs arising from the dismissal of two actions by Nanak Homes Inc. for delay.

The court found Nanak's conduct reprehensible due to significant, unexplained delays and failure to advance litigation, which warranted substantial indemnity costs.

The court also granted Kamco an indemnity against Nanak for third-party costs, concluding that Kamco reasonably joined third parties given Nanak's unparticularized claims.

Claims for non-party costs against LawPRO were dismissed as neither the "person of straw" test nor abuse of process was established.

Various defendants and third parties were awarded costs against Nanak, totaling $139,155.24.

The plaintiff, Jacob Whiteley, sought summary judgment for $185,948 in unpaid bonuses under his employer Wipro's Sales Incentive and Large Deal Bonus Plan, related to a $119 million sales contract with Innovapost.

The central issue was whether the entire deal constituted a "contracted deal" and "committed order" by the fiscal year-end of March 31, 2014, as required by the Incentive Plan.

The court found that while a Master Services Agreement (MSA) and an amendment were in place, they did not contractually bind Innovapost to purchase services until specific Statements of Work (SOWs) were signed.

Only one SOW, valued at $19 million, was executed by the deadline, for which the plaintiff had already received payment.

The remaining SOWs were finalized after the plaintiff's departure.

The court dismissed the plaintiff's motion for summary judgment, concluding that no further bonus payments were owing as the conditions for payment on the larger deal were not met by the relevant fiscal year-end.