Jonathan L. Frustaglio

A lien action concerning a residential construction project at 39 Craven Road, Toronto.

Village Homes Inc. was initially contracted to manage renovation work but the project expanded substantially beyond its original scope.

The parties disputed whether Village was a construction manager or general contractor, whether there was a fixed price contract change for extra work, and whether the contract was breached or repudiated.

The court found that Village abandoned the contract and failed to prove any amounts owing.

Ms. Connelly's counterclaim for deficiencies and completion costs was dismissed due to insufficient evidence.

Both the claim and counterclaim were dismissed, and Village's lien was discharged.

This is a costs decision following the dismissal of a motion by Toronto Standard Condominium Corporation No. 2890 (TSCC 2890) for summary judgment to end its involvement in a construction lien action.

The court awarded substantial indemnity costs to the successful respondent, E-Tech Electrical Services Inc., finding that the motion lacked merit on its core issue regarding whether TSCC 2890 qualified as a "home buyer" under the Construction Act.

The court determined that the motion unreasonably delayed the conduct of the action and was brought without sufficient justification.

A construction lien dispute arising from the termination of a mechanical subcontract.

The plaintiff, a mechanical contractor, claimed a lien for unpaid work and damages for wrongful termination.

The defendant, the construction manager, terminated the subcontract citing multiple defaults including failure to provide adequate manpower, delays in completing critical work, and failure to correct deficiencies.

The court found the defendant properly exercised its contractual right to terminate based on the plaintiff's failure to properly and diligently perform the work, but awarded the plaintiff the net unpaid balance of the subcontract after deducting the defendant's completion costs and other back-charges.

The respondent condominium corporation brought a motion for summary judgment seeking to discharge a construction lien registered by the applicant electrical contractor on the basis that the respondent was a "home buyer" under the Construction Act and therefore not subject to lien, and alternatively that the respondent was not an "owner" as defined in the Act.

The court found that the respondent was not a "home buyer" because the occupancy permit issued was partial and excluded common elements appurtenant to the units, which form part of the statutory definition of "home." The court also found a genuine issue requiring trial as to whether the lien attached to the respondent's interest based on the unclear evidence regarding whether the respondent requested the work or benefited from it.

The motion was denied in its entirety.

The defendant brought a motion seeking leave to quash Rule 39.03(1) examinations of its representatives that the plaintiff sought to conduct in response to the defendant's motion to stay the plaintiff's underlying lien action.

The plaintiff brought a cross-motion seeking leave to strike portions of an affidavit filed by the defendant.

The court granted leave for the defendant's motion to quash but dismissed the motion on the merits, finding that the plaintiff had established a reasonable evidentiary basis for the examinations and that the proposed witnesses were in a position to provide relevant evidence.

The court denied leave for the plaintiff's cross-motion.

This decision concerns a mid-trial motion in a construction lien action.

The plaintiff, Village Homes Inc., sought to strike portions of the affidavit and report of the defendant’s witness, Yu Ching Lai, regarding the presence of rebar and concrete in a disputed wall and observations of wall cracking.

The court found that Mr. Lai lacked personal knowledge regarding the rebar and concrete, as his evidence was based on hearsay from a video, and struck those portions.

However, the court allowed Mr. Lai to testify about his personal observations of wall cracking.

The ruling also addresses the parties’ discovery and production obligations, the scope of undertakings, and the admissibility of participant expert evidence.

The decision addresses whether the defendant, Valerie Connelly, should be granted leave to call five disputed witnesses at trial in a construction lien action, despite failing to comply with a court-ordered deadline for serving trial evidence.

The court finds that while Ms. Connelly failed to adequately explain her breach, the interests of justice favour allowing her to call four of the five witnesses, with the breach compensable in costs.

The court also sets a revised timetable for trial steps, addresses costs thrown away, and fixes costs of the hearing, emphasizing the importance of compliance with court orders and balancing procedural fairness.

The appellants, Caruk-Hall Construction Inc., James Caruk, and Daniel Hall, appealed convictions for acting as an unregistered builder under the Ontario New Home Warranties Plan Act, failing to notify the Warranty Corporation, and failing to pay prescribed fees.

They also challenged the dismissal of their s. 11(b) Charter application alleging unreasonable delay.

The Ontario Court of Justice dismissed the s. 11(b) application, finding the net delay was below the 18-month Jordan ceiling after deducting defence-caused delay and COVID-19 exceptional circumstances.

The court upheld the convictions, finding the appellants were responsible as builders under the Act based on control and responsibility for the home construction.

The sentencing fines were also upheld as appropriate and not excessive given the market context and deterrence objectives.

The plaintiff, Blackstone Paving and Construction Limited, sought a stay of the defendant Town of Newmarket’s counterclaim, arguing that the Town’s failure to immediately disclose a settlement agreement with third party R.V. Anderson Associates Limited constituted an abuse of process.

The court found that the settlement did not materially change the litigation landscape or the adversarial relationship among the parties, and thus did not trigger an immediate disclosure obligation.

The application was dismissed, with costs reserved to the outcome of trial.

This consolidated trial addressed multiple disputes between Raymond Nicolini (through Sayward Investments Inc., InSite Construction Management Inc., and King Station Facility Inc.) and Vilson Da Silva (through Leblon Carpentry Inc., Leblon Drywall Inc., and his wife Daenn Monteiro Loureiro).

The court found that Da Silva, Loureiro, and Leblon Carpentry breached a 2019 loan agreement with Sayward, owing $38,909.29.

A 2020 advance from Sayward to Leblon Carpentry and Da Silva was determined to be a loan, not a joint venture, with $203,735.20 owing.

The mortgage on the matrimonial home was held to secure only the 2019 loan, not the 2020 loan, due to lack of spousal consent.

The drywall contract between InSite and Leblon Drywall was found to have a price of $1,330,742, and Leblon Drywall was deemed overpaid, leading to the dismissal of its breach of contract claim.

The parties were found to have mutually terminated the drywall contract, releasing each other from claims for deficiencies and overpayments.

Claims of oppression and conspiracy brought by InSite were dismissed, as InSite was not a proper complainant for oppression and the lien claim lacked a predominant purpose to injure.

The Plaintiff, Barbara Wilds, sought substantial indemnity costs after partially succeeding in a wrongful dismissal action against 1959612 Ontario Inc. o/a Gibson Building Supplies, where she was awarded damages for wrongful dismissal and punitive damages.

The Defendant argued costs should be limited as the recovery was within Small Claims Court jurisdiction and success was divided.

The court found the action should have been commenced in Small Claims Court and limited the costs award to the maximum recoverable there ($5,250.00 plus disbursements), further reducing it by 25% due to divided success.

The Plaintiff's Rule 49 offer to settle was found not to trigger costs consequences as the judgment was not more favourable.

The Defendant was ordered to pay $6,000.00 in all-inclusive costs.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action against her former employer.

The court found the termination provisions in the employment agreement unenforceable as they violated the Employment Standards Act, 2000.

The plaintiff, who worked as an executive assistant for 4.5 months, was awarded a two-month reasonable notice period.

The court awarded damages for lost salary, benefits, earned bonus, accrued vacation, and unpaid expenses.

The court dismissed the claim for mental distress damages due to lack of evidence but awarded $10,000 in punitive damages for the employer's flagrant and repeated failures to comply with minimum statutory entitlements.

Praxy Cladding Corp. brought a motion to compel answers to refused questions and further answers to undertakings given at the examination for discovery of Stone Lamina Inc. and GCAT Group Inc. The court granted the motion in part, ordering further answers to some undertakings and many refused questions, and setting a deadline for further examinations.

The balance of the motion was dismissed.

The decision clarifies principles of relevance and proportionality in discovery, particularly in the context of construction lien actions.

The plaintiff, Praxy Cladding Corp., brought a motion for leave to amend its statement of claim in a lien action to plead reliance on an accepted quote as a contract document.

The defendants, Stone Lamina Inc. and GCAT Group Inc., opposed, arguing the plaintiff was attempting to withdraw an admission that a purchase order was the sole contract.

The court found no unambiguous admission in the original pleading and clarified that discovery admissions are not subject to Rule 51.05.

Applying the three-part test for withdrawing an admission, the court found a triable issue, a reasonable explanation (lawyer inadvertence), and no non-compensable prejudice to the defendants.

The motion for leave to amend was granted.

This is a costs and interest decision following a trial where Ben-Air Systems Inc. (plaintiff) was found to have a lien and damages for breach of contract, and the defendants' counterclaim was denied.

Ben-Air sought substantial or partial indemnity costs, while Castlemore Plumbing Limited (defendant) sought costs against Ben-Air and its principal.

The court found Ben-Air to be the successful party overall, recovering 43% of its initial claim.

However, the court criticized the conduct of the principals from both parties, finding them equally censurable.

As a result, neither side was awarded substantial indemnity costs, and no personal liability for costs was imposed on Ben-Air's principal.

Ben-Air was awarded $38,000 in partial indemnity costs, approximately 43% of its partial indemnity claim.

Prejudgment interest was also calculated on two amounts at 0.5% per annum.

Leblon Carpentry Inc. brought a motion seeking an extension of a court-ordered deadline to provide answers to undertakings from its examination for discovery, including a *nunc pro tunc* extension and further time for an outstanding undertaking.

The motion was opposed by Qi Tang, who sought to preclude Leblon from relying on the late answers.

The court dismissed Leblon's motion, finding that Leblon failed to provide a sufficient and convincing explanation for its non-compliance and did not demonstrate honest and meaningful efforts to provide responsive answers.

The court emphasized the importance of adhering to court orders, particularly in summary lien proceedings, and ruled that Leblon could not rely on the information subject to the undertakings requested by Qi Tang that was not provided by the original deadline.

Costs were awarded to Qi Tang.

The defendants, Stantec Consulting Ltd., Gordon A. Johnston, and Paul J.D. Alpern, brought a motion for summary judgment to dismiss the plaintiff G Group's claim.

The motion sought dismissal on the grounds that the claim was barred by the Limitations Act and that no genuine issue existed against the individual defendants.

The court granted summary judgment in favour of the individual defendants, finding no viable claim against them.

However, the court dismissed the motion for summary judgment against Stantec Consulting Ltd., determining that the limitations issue was complex, involved conflicting evidence, and raised genuine issues requiring a trial to resolve, particularly regarding the nature of the agreement and the discoverability of the claim.

The plaintiff, Ben-Air Systems Inc., brought an action for a construction lien and damages for breach of contract against Castlemore Plumbing Limited and 2664835 Ontario Inc. The claim against 2664835 Ontario Inc. was discontinued.

Ben-Air alleged wrongful repudiation of the subcontract by Castlemore and sought payment for extras and delay costs.

Castlemore counterclaimed for damages to complete the work.

The court found that Castlemore wrongfully repudiated the subcontract, denying its claim for completion costs.

The court denied Ben-Air's claims for specific extras and delay costs due to lack of proof and credibility issues.

The court ultimately determined Ben-Air's lien and damages based on the original contract, undisputed extras, and a judicially determined credit for uncompleted work, dismissing Castlemore's counterclaim.

Weiyan Li brought motions for default judgment against Guru Constrarchit Ltd. and Guangcheng Zhu (its principal) in two related construction actions, after they failed to engage with the proceedings following removal orders.

The court granted default judgment, finding Guru and Mr. Zhu liable for breach of contract, conversion of project funds, and breach of trust due to significant deficiencies in construction work, misappropriation of funds, and Mr. Zhu's fraudulent conduct and domination of Guru.

Damages were awarded based on diminution in value rather than cost of cure, along with punitive damages and substantial indemnity costs.