Jonathan Goode

The moving party, a terminated project manager, brought motions to dismiss or stay claims advanced against it in two related construction actions on grounds of abuse of process and multiplicity of proceedings.

The responding parties had advanced identical counterclaims for deficiencies and delay across multiple proceedings arising from the same construction project.

The court found the counterclaim in the simplified procedure action was duplicative and an abuse of process, but accepted the responding parties' discontinuance of that claim.

The court declined to dismiss the separate balcony deficiency action, finding the issues sufficiently distinct and the parties not identical, but ordered that it be heard together with or immediately after the lien action in the interests of judicial economy.

After repeated non-compliance with production and undertaking orders, including a peremptory and then last-chance order, pleadings were struck.

The court found no basis to interfere with the motion judge’s discretionary determination and upheld the sanctions.

The court considered a motion by Joanne Fox to permit her spouse, Evan Kirsh, to attend continued examinations for discovery in a Construction Act action, for the purpose of assisting her counsel.

The plaintiff, Irwin Allen Design Build Inc. (IADB), opposed further attendance by Mr. Kirsh, citing alleged disruptive behaviour and negative impacts on its deponent.

The court exercised its discretion to allow Mr. Kirsh’s attendance, subject to conditions: he may attend the examination of Mr. Allen only by videoconference and may attend Ms. Fox’s examination in person or by videoconference, but must not interfere or act as a witness.

The decision balances fairness to both parties, considering Mr. Kirsh’s prior attendance, his role as a material witness, and the need to avoid disruption.

The court considered two motions: (1) by the Defendants/Plaintiffs by Counterclaim (the 501 Parties) for leave to file a Fresh as Amended Statement of Defence and Counterclaim, and (2) by the Plaintiffs/Defendants by Counterclaim (the 2B Parties) for a further and better Affidavit of Documents.

The court granted the 501 Parties' motion, finding no abuse of process or limitation period bar, and authorized the Amended Pleading.

The court also largely granted the 2B Parties' request for further production, ordering disclosure of missing bank records and email attachments, and set out a process for resolving any further disputes over redactions or missing documents.

This endorsement determined the costs for two previous motions where the Defendants (Oakleigh and Aurelia) were successful.

The Plaintiff's request for further settlement disclosure was denied in the "undertakings motion," and the Defendants successfully obtained a reduction of their security bond in the "security motion." The court awarded partial indemnity costs of $15,000 for the undertakings motion.

For the security motion, the Defendants' requested costs of $258,901.81 were reduced to $174,522.94, primarily by applying the "least expensive course" principle under s. 86(2) of the Construction Act to significantly reduce consulting fees.

The Plaintiff was ordered to pay the fixed costs forthwith.

The defendants, Aurelia Limited Partnership and Oakleigh Holdings Inc., brought a motion under section 44(5) of the Construction Act to partially reduce the security posted to vacate the plaintiff Demikon Construction Ltd.'s claim for lien.

The defendants argued that direct payments made to subcontractors, for which they had not received credit, should reduce the lien security.

The court found that these direct payments were valid under section 28 of the Act and should reduce the lien amount.

The motion was granted, reducing the lien security from $5,085,812.66 to $1,581,587.83.

The defendant, AIM Recycling Hamilton, brought a motion for security for costs against the plaintiff, Compass Mechanical Contracting Inc., under Rule 56.01 of the Rules of Civil Procedure.

The plaintiff argued the motion was barred because the action had been set down for trial and that it was impecunious.

The court granted the defendant leave to bring the motion, finding the plaintiff had insufficient assets.

The court held that the plaintiff failed to provide robust financial disclosure to establish impecuniosity.

Balancing the interests of justice, the court ordered the plaintiff to post $20,000 in security for costs.

The moving party brought motions to declare the plaintiffs' construction liens expired under the Construction Lien Act.

The substantive relief was granted on consent.

The only remaining issue was costs.

The court declined to award costs to the moving party, finding that its counsel had engaged in sharp practice by failing to respond to correspondence from opposing counsel that revealed a fundamental misunderstanding of the statutory deadlines during the COVID-19 pandemic.

The court held that correcting this clear mistake would not have sacrificed the client's rights and that the motions could have been brought ex parte or in writing.

The defendants brought a motion to compel the plaintiffs to attend examination for discovery, and the plaintiffs brought a cross-motion to compel answers to undertakings.

The substantive issues were resolved by agreement, leaving only the issue of costs.

The court found that both parties' litigation approach was disproportionate to the issues in dispute, especially given the simplified procedure action.

Despite settlement offers, the parties could not agree on a minor costs amount.

The court, exercising its discretion under the Courts of Justice Act and Rules of Civil Procedure, ordered that each party bear their own costs for these motions.

The plaintiff, Baeumler Quality Construction Inc., sought costs after successfully defending a motion by the defendants, the Pirraglias, to strike a construction lien.

The court, having dismissed the Pirraglias' motion, was tasked with determining the quantum of costs.

Baeumler requested $23,002.10 on a partial indemnity scale, while the Pirraglias proposed $7,500.

Considering factors such as proportionality, the stakes, scope, and reasonableness, the court awarded Baeumler $15,000 in costs, noting that the requested amount was too high for a one-issue motion primarily based on documentary evidence, especially given the principal claim was for $34,000.

The defendants moved to set aside a default judgment, arguing that their former counsel's negligence, including undisclosed Law Society suspensions and failure to attend to the action, led to the default.

The plaintiffs contended the defendants were aware or should have been aware of their lawyer's issues and lacked an arguable defence.

The court applied the Chitel test, finding the motion was brought without delay, the default was adequately explained by counsel's negligence, and the defendants presented an arguable defence regarding the renovation contract.

The court emphasized that clients should not be irrevocably jeopardized by counsel's neglect and that allowing the judgment to stand would bring the administration of justice into disrepute.

The default judgment and a prior order striking the defence were set aside, and garnished funds were ordered returned as no exceptional circumstances for a freezing order were shown.

A subcontractor brought a simplified procedure summary trial seeking payment for renovation work performed on two public construction projects and claimed against a labour and material payment bond issued by the defendant insurer.

With respect to the first project, the court found the subcontractor proved the debt owed by the general contractor but failed to comply with the notice and timing conditions precedent required to enforce the labour and material bond against the surety.

As a result, the debt was recognized but not enforceable against the insurer.

For the second project, the court found the subcontractor properly complied with the bond notice requirements and proved the amount owing, while the defendant failed to produce reliable evidence of deficiencies or rectification costs.

Judgment was therefore granted against the insurer for the second project only.

The plaintiff brought a pre-trial motion seeking to amend pleadings in two consolidated construction-related actions originally commenced in Small Claims Court.

The requested amendments included increasing the monetary claims above the former Small Claims Court jurisdictional limit, correcting a bond number, asserting rights under a labour and material bond, and adding claims for relief from forfeiture under the Courts of Justice Act and the Insurance Act.

The court held that increasing the quantum of damages already claimed did not constitute a new cause of action and allowed the amendments raising the amounts claimed.

However, the court refused amendments introducing a claim under a labour and material bond where the original pleadings relied on an incorrect performance bond, finding this would introduce a new and statute-barred claim causing presumed prejudice.

The court also rejected the proposed amendments seeking relief from forfeiture because the plaintiff had failed to comply with condition precedent notice requirements and its conduct in delaying the amendment was unreasonable.