Jonathan L. Frustaglio

The parties reached a settlement regarding appeals of a proposed residential development within the Village of Churchville Heritage Conservation District.

The Tribunal accepted uncontested expert planning and heritage evidence that the settlement proposal represents good land use planning, is consistent with the Provincial Policy Statement, and conforms to the Growth Plan and local official plans.

The Tribunal dismissed the heritage appeals, approved the draft plan of subdivision, and amended the zoning by-law to facilitate the development.

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.

The Ontario Land Tribunal issued an amending decision to correct a technical error in its May 2, 2024 decision.

Pursuant to Rule 24.4 of the Tribunal's Rules of Practice and Procedure, the decision was amended to include the Title of Proceedings for a related case that was heard together with the lead case.

In all other respects, the original decision remains unchanged.

The Tribunal convened a Case Management Conference regarding appeals for an Official Plan Amendment, Zoning By-law Amendment, and Plan of Subdivision to facilitate a residential development.

The appellant and the municipality reached a settlement, and revised planning instruments were filed.

Another party raised a concern regarding the dedication of a block of land, which was addressed by the municipality.

The Tribunal directed the parties to confirm the settlement in writing and request a settlement hearing.

The appellant contractor commenced a Small Claims Court action for unpaid invoices against the respondent homeowners, who had previously commenced a Superior Court action against the appellant for deficient roof repairs.

A Small Claims Court judge stayed the small claims action pending the resolution of the Superior Court matter.

The appellant appealed the stay order.

The Divisional Court dismissed the appeal for want of jurisdiction, finding the stay was an interlocutory order, not a final order.

The court also declined to convert the appeal into an application for judicial review, as a single judge lacked jurisdiction and the proposed application lacked apparent merit.

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.

A Case Management Conference was held for related appeals concerning the Churchville Heritage Conservation District and site-specific applications for an Official Plan Amendment, Zoning By-law Amendment, and Plan of Subdivision.

The Tribunal granted Party status to a neighbouring property owner for the site-specific appeals and Participant status to another individual for the heritage appeal.

A Procedural Order and Issues List were approved, and dates for a further Case Management Conference and a five-day Hearing on the Merits were scheduled.

The moving parties brought a motion for leave to appeal the order of Koehnen J. dated May 24, 2023.

The motion was heard in writing by a panel of the Divisional Court.

The court dismissed the motion for leave to appeal without costs.

The plaintiff registered a construction lien against the defendants' property and noted the defendants in default after they failed to deliver a statement of defence.

The defendants subsequently sought to bring a motion to discharge the lien on the basis that it had expired because the plaintiff failed to set the action down for trial within two years.

The court considered the preliminary issue of whether the defendants had standing to bring the motion despite being noted in default.

The court granted the defendants leave under section 5(2) of O. Reg 302/18 to bring the motion, finding there was evidence to support the defence that the lien had expired.

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.

The defendants appealed an Associate Judge's order requiring them to produce further and better affidavits of documents.

The defendants argued the Associate Judge erred by refusing an adjournment, making the order without sufficient evidence, and appending an overly broad list of documents to the order.

The Superior Court dismissed the appeal, finding no error in the refusal of the adjournment, sufficient evidence to support the order, and that the order appropriately incorporated principles of relevance and proportionality under the Rules of Civil Procedure.

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.

The moving party brought a motion to compel the responding parties to provide information required under section 39 of the Construction Act.

The responding parties provided the requested information after the motion was served but before the hearing.

The moving party sought costs of the motion.

The court awarded costs to the moving party, finding that the responding parties caused the unnecessary motion by failing to respond to the section 39 demand within the statutory 21-day period and making no reasonable effort to resolve the motion costs.

The applicant appealed the City of Vaughan Committee of Adjustment's refusal of a minor variance to reduce the required rear yard soft landscaping from 60% to 42.9% to maintain an existing bocce court.

The developer of the subdivision opposed the application, arguing the bocce court increased impermeable surface area and threatened the stormwater management system.

The Tribunal allowed the appeal and authorized the variance, accepting evidence that the bocce court materials were permeable and noting it had existed for five years without causing any drainage issues.

The defendant brought a summary judgment motion to vacate or discharge the plaintiff's claim for lien, or alternatively to reduce the amount of security posted.

The court found that there were genuine issues requiring a trial regarding the contract price and the date the plaintiff last performed work on the project.

The court held that the evidentiary record did not permit a fair and just determination of these issues without a trial, as there were serious credibility issues and conflicting evidence.

The motion was dismissed.