J. Lester

The plaintiff contractor brought an action against the defendant owner for extension and delay costs incurred during a construction project governed by a CCDC2 fixed price contract.

The project was delayed by six months due to owner-directed changes and design issues, which were addressed through Change Orders that extended the contract time and increased the price, but did not include the contractor's site and delay costs.

The court dismissed the action, finding that under the fixed price contract, the contractor was required to include all costs associated with a change in the Change Orders, or alternatively, provide timely written notice of a delay claim.

The court also declined to grant relief from forfeiture, concluding that the contractor's failure to follow the contractual notice provisions was unreasonable and undermined the cost certainty intended by the contract.

The moving party appealed a previous order vesting title of his real estate to the respondent estate and sought a stay of any sale of the property pending the appeal.

The parties consented to a stay until June 15, 2023, but disagreed on whether it should continue until the appeal's disposition if no decision was made by that date.

Applying the three-part test for an injunction, the court found a serious issue to be tried, potential irreparable harm if the property was sold, and that the balance of convenience favoured the moving party.

The court ordered the stay to continue until the disposition of the appeal.

The applicant sought a declaration that his automobile insurer had a duty to defend him in a civil action.

The underlying action alleged the applicant committed a public nuisance and caused hearing damage by playing loud music from externally powered speakers placed in the rear hatch of his parked vehicle during a protest.

Applying the Amos test, the court found that the vehicle was merely used as a platform for the speakers and the alleged tort did not arise from the ordinary and well-known use and operation of an automobile.

The application was dismissed.

The plaintiff's motion for judgment based on acceptance of an offer was previously dismissed.

Both parties sought costs.

The court found that although the defendants were successful on the motion, they were not entitled to costs because the motion was necessitated by their error in failing to withdraw the offer.

In a rare circumstance, the court awarded costs of $4,000 to the unsuccessful plaintiff.

The plaintiff commenced an action for constructive dismissal and other claims.

The defendants made a $25,000 settlement offer in a 'without prejudice' letter in 2016.

Over the next three years, the scope of the plaintiff's claims was significantly reduced through other proceedings.

In 2020, the plaintiff attempted to accept the 2016 offer.

The defendants refused, arguing the offer was not a Rule 49 offer, the acceptance was a counteroffer, and circumstances had changed.

The court found the offer was a valid Rule 49 offer and the acceptance was valid.

However, the court exercised its rare discretion to refuse to enforce the settlement, concluding it would be unjust to allow the plaintiff to profit from the defendants' error in failing to withdraw the offer after circumstances had significantly changed.

The plaintiff, an architectural design firm, sued the defendants for copyright infringement, alleging they copied its design for a townhome project in Thunder Bay to build a similar project in Fort Frances.

The court found that the plaintiff held copyright in the original design, which was an original work requiring skill and judgment.

The court concluded that the defendants' design was a substantial reproduction of the plaintiff's work, constituting copyright infringement.

The plaintiff was awarded declaratory relief, an injunction, and $6,500 in statutory damages.

The defendant brought unsuccessful motions for a writ of possession and interim preservation of property.

The plaintiff sought costs of the motions on a partial indemnity basis.

The court fixed the plaintiff's partial indemnity costs at $4,709.73 but ordered that they be payable in the cause, as the issue of possession was the central issue to be determined at trial.

The defendant sought costs after successfully moving to discharge a construction lien that the plaintiff had improperly registered.

The plaintiff had registered the lien out of time and in the name of an individual rather than the contracting corporation.

The court found that while the lien was ill-conceived, the plaintiff's conduct was not reprehensible, scandalous, or outrageous, as the defendant did owe the underlying debt for a wheelchair lift.

The court awarded the defendant partial indemnity costs of $4,500, payable only upon the defendant satisfying the $36,537.50 consent judgment owed to the plaintiff.

The Public Guardian and Trustee, acting as litigation guardian for an incapable beneficiary, brought an application to compel the estate trustee to pass the estate accounts.

The beneficiary had signed a release and received her share of the estate, but was assessed as incapable less than three months later.

The court applied section 2(4) of the Substitute Decisions Act, 1992, finding that the estate trustee failed to prove she did not have reasonable grounds to believe the beneficiary was incapable when the release was signed.

The application was granted and the estate trustee was ordered to pass the accounts.

Following the dismissal of the plaintiff's action for want of jurisdiction, the successful defendant sought costs on a substantial indemnity basis.

The self-represented plaintiff argued he was impecunious and should not pay costs.

The court rejected the impecuniosity argument, noting it does not excuse bringing a baseless action.

The court declined to award substantial indemnity costs as the plaintiff's conduct was not reprehensible, but awarded partial indemnity costs fixed at $5,000 for fees plus HST and disbursements.

The plaintiffs successfully defeated the defendant's motion to dismiss their defamation action under the anti-SLAPP provisions of the Courts of Justice Act.

The plaintiffs sought partial indemnity costs.

The defendant argued that no costs should be awarded pursuant to the presumption in s. 137.1(8).

The court distinguished prior case law, finding the plaintiffs were individuals protecting their reputations, not a corporation using strategic litigation.

The court awarded the plaintiffs partial indemnity costs, fixing fees at $7,500 plus disbursements and HST.

The defendant, a former police officer convicted of dangerous driving causing death, made Facebook posts implying the deceased victim contributed to the fatal collision and criticizing her family.

The plaintiffs (the victim's family) sued for defamation, intentional infliction of mental distress, and intrusion upon seclusion.

The defendant brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the action.

The court dismissed the motion, finding that the Facebook posts did not relate to a matter of public interest, but rather to the defendant's personal desire to shift blame and criticize private individuals.

An employee alleged disability discrimination, failure to accommodate, and wrongful dismissal after being placed on leave following repetitive strain injuries and later receiving a termination letter.

The court held the employer had accommodated the employee to the point of undue hardship before placing him on leave and did not breach the duty to accommodate during the subsequent leave period because the employee failed to provide medical information supporting a return to work.

However, the employer’s January 2013 termination constituted wrongful dismissal and was influenced in part by the employee’s disability.

The court awarded 15 months’ pay in lieu of notice but deducted workers’ compensation benefits received during the notice period.

Additional damages were awarded for discrimination arising from the termination itself.