John Mullen

The plaintiff homeowner sued the defendant contractor for breach of contract and unjust enrichment arising from a home renovation project, seeking damages for incomplete and deficient work.

The defendant counterclaimed for unpaid extra work.

The court found that the parties had a binding fixed-price contract for the initial scope of work and that the plaintiff had authorized specific extras.

The court concluded the plaintiff underpaid the defendant by $7,220.50 for the authorized extras, but also found the defendant liable for $10,731.46 in construction deficiencies.

Both the claim and counterclaim were allowed in part.

The plaintiff franchisee brought a motion for relief from forfeiture and an interlocutory injunction to reinstate a terminated franchise agreement and commercial sublease for a Williams Fresh Café location.

The franchisor had terminated the agreement after the plaintiff failed health audits, accrued significant debts, and closed the store.

The court applied the RJR-MacDonald test, requiring a strong prima facie case because the plaintiff sought a mandatory injunction to enforce a month-to-month agreement with no renewal right.

The court dismissed the motion, finding the plaintiff failed to establish a strong prima facie case, irreparable harm, or that the balance of convenience favored granting the injunction.

The defendant moved to dismiss the plaintiff's 2016 action for rent arrears due to delay under Rule 24.01(1)(c).

The plaintiff took no steps to advance the action for nearly five years after the close of pleadings.

The court found the delay to be inordinate and inexcusable, and the plaintiff failed to rebut the presumption of prejudice or provide a reasonable explanation.

The motion was granted, the action was dismissed, and costs were awarded to the defendant.

The defendant moved to set aside a default judgment and associated writs of execution, arguing improper service and that the credit card debts were corporate, not personal.

The court found the defendant was not properly served, thus setting aside the default judgment and noting in default.

However, the court dismissed the motion to lift the writs of execution, finding the defendant's proposed defence lacked an "air of reality" and that maintaining the security was necessary to preserve the integrity of the administration of justice given the weak merits of the defence and the defendant's delay.

The defendants in a construction lien action brought a motion to amend their counterclaim to add two separate corporate entities and their principal as plaintiffs, or alternatively, to have the counterclaim proceed as a separate action.

The court held that the Construction Lien Act prohibits adding non-parties as plaintiffs by way of counterclaim.

However, the court granted leave to withdraw an admission regarding the contracting party and ordered that the proposed counterclaim be severed and proceed as a separate action to be tried together with the lien action.

The plaintiffs and defendants brought cross-motions for summary judgment in an action concerning advances totalling $792,154 made by the plaintiffs to the defendants.

The plaintiffs argued the advances were personal loans, while the defendants argued they were payments made on behalf of a corporation as interim bridge financing.

The court found that the conflicting evidence, particularly regarding credibility and the characterization of the advances, created a genuine issue requiring a trial.

Both motions for summary judgment were dismissed, and the motion judge remained seized of the action for trial.

The appellants appealed a summary judgment decision finding that the limitation period for the respondent's tort and oppression claims had not expired.

The appellants argued the limitation period began when the respondent knew the corporate defendant vacated the premises and consulted a lawyer.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the respondent did not have, and could not have reasonably discovered, information about the transfer of the corporate defendant's business and contracts to another corporation at that time.

The appellant landlord appealed a motion judge's decision deducting an amount from its claimed relief for a defaulting tenant.

The Court of Appeal allowed the appeal, finding that the landlord provided unchallenged evidence of hiring a commercial real estate agent to re-let the premises, thereby taking reasonable steps to mitigate its loss.

The judgment was varied to award the full amount claimed.

Following a summary judgment decision dismissing a limitation period defence, the court addressed costs arising from multiple related motions.

The plaintiff sought partial indemnity costs for the successful summary judgment motion and for two additional motions involving the corporate defendant: an unsuccessful motion to set aside noting in default and a successful motion for default judgment.

Applying the principles governing costs under Rule 57.01 of the Rules of Civil Procedure, the court exercised its discretion to award reasonable fixed costs reflecting the work required for each motion.

Costs of $1,000 each were ordered against the corporate defendant for the two ancillary motions, and $9,000 was ordered against the individual defendant for the summary judgment motion.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action based on the expiry of the applicable limitation period.

The plaintiff landlord sued the corporate tenant for breach of a commercial lease and the personal defendant director for alter ego liability, inducing breach of contract, intentional interference with contractual relations, and oppression.

The court held that the six-year limitation period under the Real Property Limitations Act applied to the breach of lease claim against the director as an alter ego.

The court found that the two-year limitation period under the Limitations Act applied to the tort and oppression claims, but these claims were not discoverable before December 14, 2010.

The motion for summary judgment was dismissed, and summary judgment was granted against the personal defendant dismissing his limitation period defence.

A non-party lawyer appealed a costs order requiring him to personally pay $3,000 to opposing counsel following an order made by a Master.

After leave to appeal was granted, the parties engaged in settlement negotiations but disagreed on the wording of the resulting order.

The moving party sought confirmation that the settlement included both allowing the appeal and setting aside the impugned paragraph of the Master’s costs order.

The court held that setting aside the impugned portion necessarily meant the appeal was allowed and found the parties were ad idem in their settlement.

The motion to confirm the settlement was granted and the settlement enforced.

Following certification of a pension-related class proceeding, the plaintiff sought partial indemnity costs of over $210,000 for the certification motion.

The defendants conceded entitlement to costs but argued the claimed amount was excessive and opposed joint and several liability.

Applying the principles governing certification motion costs, including those articulated in Pearson v. Inco Ltd., the court determined that the plaintiff’s claimed costs were somewhat excessive and unsupported in part.

The court fixed fair and reasonable partial indemnity costs at $175,000 inclusive of disbursements and taxes.

The defendants were not held jointly and severally liable; instead, four groups of defendants were ordered to each pay an equal share.

The plaintiff sought to certify a class action on behalf of members of the Eastern Canada Car Carriers Pension Plan against the plan's trustees, administrative agent, and actuaries.

The plaintiff alleged that the defendants negligently or in breach of trust granted early retirement benefits when the plan had ongoing solvency issues, leading to a reduction in benefits for plan members.

The court found that the pleadings disclosed causes of action in negligence and breach of trust, the class was identifiable, there were common issues, a class proceeding was the preferable procedure, and the representative plaintiff was suitable.

The motion for certification was granted.

The Regional Municipality of Peel appealed a trial judgment finding it solely responsible for flood damage to the plaintiffs' homes caused by sewer backups during heavy rainfalls in 1995 and 1996.

The Region argued that the City of Brampton's storm sewer system was deficient and contributed to the flooding.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the flooding was caused by a failure of the sanitary sewer system, which the Region took over responsibility for in 1974.

There was no evidence that Brampton's storm sewer system was negligently operated or caused the flooding.

The appellants appealed a summary judgment decision.

The Court of Appeal allowed the appeal and set aside the summary judgment, finding that there were significant contested issues of fact regarding compliance with a Separation Agreement, waiver, and fundamental breach.

Costs were reserved to the trial judge.