C. Wiebe

The plaintiff contractor registered a construction lien and claimed breach of contract damages after the defendant owner terminated their residential construction contract.

The owner counterclaimed for damages, alleging the contractor abandoned the project and left numerous deficiencies.

The court found the contract was a fixed-price agreement with cost-plus ongoing compensation and shared supervision.

The court held the owner failed to prove fundamental breach by the contractor, as most alleged deficiencies were either changes necessitated by site conditions (like sandy soil) or unfinished work, and no proper notice to correct was given.

The owner's termination amounted to wrongful repudiation.

The contractor was awarded $74,259.32 for its lien, lost management fees, and lost profit, while the owner's counterclaim was dismissed.

The plaintiff in a construction dispute brought a motion to compel the defendants to answer questions refused at discovery and to produce a further and better affidavit of documents.

The core issue was whether the defendants implicitly waived solicitor-client privilege regarding advice received during the negotiation of an Amending Agreement.

The Master found no waiver regarding the negotiation of the agreement, but found an implicit waiver regarding advice on payments made after the agreement.

The Master also ordered disclosure of competing quotations but denied requests for consultant files and financial means.

The plaintiff was granted leave to complete the discovery and awarded partial indemnity costs of $6,500.

Following the settlement of a construction lien action for $17,000, the parties disputed the quantum of costs payable to the plaintiff.

The plaintiff sought over $22,000, while the defendant argued costs should be limited to Small Claims Court tariffs because the plaintiff failed to take the least expensive course of action.

The court awarded the plaintiff $8,000 in costs, finding that while the plaintiff should have transferred the matter to Small Claims Court earlier, the defendant also delayed in bringing its motion to declare the lien expired.

The defendants brought a motion to declare the plaintiff's construction lien expired and to vacate it, arguing it was not preserved in time and the statement of claim was not served within the 90-day statutory period.

The court found the lien was preserved in time based on the actual date of contract termination.

Regarding the late service of the statement of claim, the plaintiff's counsel admitted to a six-month delay, citing oversight and the impact of the COVID-19 pandemic.

The court adjourned the motion to allow the plaintiff to bring a cross-motion for an extension of time for service, requiring more evidence on the pandemic's effect on the delay.

On the first day of a trial, the self-represented defendant brought motions to adjourn the trial to retain counsel and for the Master to recuse himself due to an alleged reasonable apprehension of bias.

The Master dismissed the adjournment motion, finding the defendant's lack of counsel was a deliberate delay strategy.

The Master also dismissed the recusal motion, holding that a passing comment about the defendant travelling abroad during the COVID-19 pandemic did not demonstrate anti-Semitic or anti-elitist bias.

The plaintiff brought a motion to strike the defendant's statement of defence and counterclaim for failing to comply with trial directions to deliver affidavits for evidence in chief.

The defendant, who was self-represented after his counsel was removed, brought a motion to adjourn the trial to retain new counsel.

The court found the defendant's non-compliance was deliberate, part of a delay strategy, and showed a profound lack of interest in the proceedings.

Applying the test for striking pleadings, the court struck the defendant's set-off and counterclaim but allowed the defence to stand so the defendant could cross-examine the plaintiff's witnesses.

The motion to adjourn was dismissed.

The plaintiff contractor brought a construction lien action against the defendant owner for unpaid renovation work on a commercial condominium unit.

The parties disputed seven claims for extra work and a 10% discount clause for delay inserted by the owner.

The court found that the extra work was outside the scope of the contract and implicitly authorized, awarding the plaintiff $5,755.09 for the extras.

The court also held that the 10% discount clause was an unenforceable penalty, as it was not a genuine pre-estimate of damages, and dismissed the owner's claim for delay damages.

Judgment was granted in favour of the plaintiff for $12,535.09.

The plaintiff brought a motion for a sixth timetable order to avoid dismissal of her action for delay under Rule 48.14.

The defendants opposed, arguing the action should be dismissed due to the plaintiff's repeated failures to move the litigation forward over ten years.

The court found the plaintiff's explanations for delay largely unacceptable but declined to dismiss the action because the defendants maintained a closely linked counterclaim and had also been dilatory.

The court granted the motion, imposing a strict peremptory timetable to ensure the action proceeds to trial.

The plaintiff brought a motion to strike the defendants' statement of defence and counterclaim under Rule 60.12, alleging non-compliance with trial management directions to deliver a Scott Schedule.

The court found that while the defendants' Scott Schedule was imperfect, they had made a good faith effort to comply and offered to revise it expeditiously upon retaining new counsel.

The court dismissed the motion, noting that striking pleadings is a draconian measure reserved for repeated and blatant disregard of court orders.

The court awarded substantial indemnity costs to the defendants because the plaintiff unreasonably forced the motion and ignored a favourable offer to settle.

The defendant brought a motion to declare the plaintiff's construction lien expired.

The plaintiff conceded the lien had expired, leaving only the issue of costs to be determined.

The defendant sought substantial indemnity costs for an earlier motion to vacate the lien and partial indemnity costs for the current motion.

The court awarded the defendant a total of $5,500 in partial indemnity costs, reducing the amounts claimed due to the straightforward nature of the motions and unnecessary factum preparation.

Following a successful motion to enforce a settlement agreement, the plaintiff sought costs for both the motion and the underlying action.

The court found that the settlement agreement explicitly provided for the plaintiff's legal costs of the action in the event of default.

After deducting amounts related to a separate union claim, the court awarded the plaintiff $12,000 in partial indemnity costs for the action and $6,500 in partial indemnity costs for the motion.

The self-represented plaintiff moved for leave to amend his statement of claim to add several new causes of action and for further documentary production from the defendant bank.

The court denied most of the proposed amendments, finding them to be statute-barred under the Limitations Act, 2002, or untenable based on prior court rulings.

However, the court allowed amendments related to bad faith referencing, intentional interference with economic relations, breach of privacy, and intentional infliction of emotional distress.

The court also ordered the defendant to produce certain documents related to the allowed claims, while denying production of other requested documents.

No costs were awarded due to divided success.

The plaintiff contractor brought a construction lien action for unpaid invoices relating to the installation of epoxy flooring at a commercial property.

The defendant owner counterclaimed for the cost of replacing the floor, alleging the contractor installed the wrong product and left deficiencies.

The court found that the owner fundamentally breached the contract by unilaterally ordering a stop to the work and hiring a replacement contractor without giving the plaintiff an opportunity to correct deficiencies.

Although the plaintiff had installed an unspecified, inferior epoxy product, this breach was rendered immaterial by the owner's prior repudiation.

The court awarded the plaintiff its unpaid invoices and extras, subject to a quantum meruit set-off for the cost difference between the specified and installed epoxy products.

The owner's counterclaim was dismissed.

The defendants brought a renewed motion for security for costs against the plaintiff corporation.

The court found that the plaintiff's financial statements, which showed consistent deficits and a lack of assets, provided good reason to believe the plaintiff had insufficient assets in Ontario to pay a potential costs award.

The court ordered the plaintiff to post $95,000 in security for costs, applying a rough justice apportionment to account for the defendants' counterclaim.

The plaintiff brought a motion to enforce Minutes of Settlement after the defendant failed to pay the required interest on the settlement amount.

The settlement included a provision that failure to cure a default within 10 days would result in a consent judgment for the full original lien claim of $611,061.10, less any principal paid.

The defendant argued for relief from forfeiture, claiming the penalty was unconscionable.

The court rejected this argument, finding the consent judgment was not disproportionate to the original claim and that the defendant had not been taken advantage of.

The motion was granted, and judgment was ordered for the net amount of $286,061.10.

Following the dismissal of Multiplex's motions for a sealing order and pleading amendments, and the granting of its motion to examine a non-party under Rule 31.10, the court determined the costs of the motions.

The court awarded PGH $11,000 in partial indemnity costs for the dismissed motions, finding Multiplex's conduct was not reprehensible or wholly devoid of merit to justify substantial indemnity costs.

The court deferred the costs of the successful Rule 31.10 motion, ruling that the non-party's costs would be determined if he seeks reimbursement, and PGH's liability for Multiplex's costs would be determined in the cause of the underlying fraud allegations.

The plaintiff subcontractor brought a construction lien action against the defendant general contractor after its subcontract was terminated.

The general contractor counterclaimed for completion costs and back-charges.

The court found that the subcontractor had repudiated the contract through excessive payment demands, a production slowdown, and uncorrected deficiencies, justifying the termination.

The subcontractor's claims were dismissed, and it was ordered to pay the general contractor $516,458.18 in damages for back-charges.

A sub-subcontractor was awarded $84,002.92 in basic holdback from the general contractor.

The plaintiff brought a motion seeking an order requiring the defendants to respond to written requests for information pursuant to section 39 of the Construction Act.

The defendants argued that the requests were improperly served by fax and opposed costs.

The court validated the service by fax under Rule 16.08, finding the documents came to the defendants' notice, and ordered the defendants to provide the requested information and pay the plaintiff's costs of the motion.

The parties brought cross-motions in a construction lien action.

The plaintiff moved to strike paragraphs of the defendant's Statement of Defence and Counterclaim as frivolous and vexatious, arguing they pleaded irrelevant and prejudicial facts regarding a failure to assist in obtaining financing.

The defendant moved to compel answers to refused questions and production of documents from a section 40 cross-examination, and sought costs thrown away.

The Master dismissed the motion to strike, finding the pleaded facts were material to the alleged breach of contract.

The Master ordered the plaintiff to produce the requested costing documents, as the nature of the contract (fixed price vs. cost-plus) was in dispute, making the documents potentially relevant.

The request for costs thrown away was denied.

The plaintiff contractor registered a construction lien and brought an action for unpaid invoices totaling $24,327.43 relating to a condominium renovation.

The defendant owner disputed the amount, claiming 19 specific discounts and back-charges for alleged deficiencies, unapproved extras, and incomplete work.

Following a summary trial, the court preferred the plaintiff's evidence, supported by contemporaneous logs, over the defendant's testimony.

The court allowed minor deductions totaling $2,423.85 (including HST) for unperformed electrical work, door changes, and code violations, but dismissed the majority of the defendant's claims.

The plaintiff was awarded $21,903.58.