C. Wiebe

ABCO brought a motion for the production of documents from an ongoing arbitration involving Pomerleau and the TTC.

After the motion was adjourned, ABCO abandoned it, citing timing issues for the upcoming trial.

Pomerleau sought costs thrown away on a full indemnity basis.

The Master found that ABCO's motion was brought too late, lacked sufficient evidence of necessity, and appeared to be a fishing expedition.

Pomerleau was awarded $12,000 in costs.

The defendant, Pomerleau Inc., brought a motion to adjourn a scheduled 18-day trial on the basis that a pending contested bankruptcy motion against the plaintiff, ABCO One Corporation, would likely result in bankruptcy, rendering trial preparation a waste of money.

The court granted leave for the motion under the Construction Lien Act but dismissed the motion to adjourn.

The court relied on expert evidence that a bankruptcy judge would likely stay any bankruptcy order to allow the trial to proceed, and noted that adjourning the trial might improperly influence the bankruptcy judge.

The court awarded costs of $1,000 to the plaintiff, reduced because the matter could have been handled more efficiently via a case conference.

The plaintiff brought a motion under Rule 45.02 for an order requiring the defendants to pay $1,848,000 into court.

The funds were originally held in escrow pursuant to an asset purchase agreement but were released to the defendants after the plaintiff failed to serve a loss notice on the escrow agent before the contractual deadline.

The court dismissed the motion, finding no serious issue to be tried regarding the plaintiff's claim to the specific fund, as the defendants did not improperly direct the release of the funds and the escrow agent acted in accordance with the agreement.

The plaintiff in a construction lien action brought a motion for leave to amend its Statement of Claim to plead restitution unjust enrichment and for leave to file a document brief at trial.

The court denied leave to amend, finding that the proposed amendments were legally untenable because the Construction Lien Act prohibits joining non-contractual claims, such as pure restitution unjust enrichment, in a lien action.

However, the court granted the plaintiff leave to file its document brief at trial, as the documents were potentially relevant and any prejudice from late service was mitigated by a trial adjournment.

Costs of $7,500 were awarded to the responding party.

The plaintiff in a wrongful dismissal action moved for a further and better affidavit of documents and to compel answers to questions refused at discovery.

The plaintiff alleged constructive dismissal after the defendant unilaterally reduced his compensation package.

The defendant claimed it had unfettered discretion to vary the commission structure based on business realities, including profitability.

The court found the defendant's financial records relevant to test its claim regarding business realities and ordered production of financial books and records from 2000 to 2016.

The court also ordered the defendant's representative to answer most of the refused discovery questions, finding them relevant to the profit margin issue.

The plaintiff was awarded $8,000 in partial indemnity costs.

The parties brought cross-motions regarding refusals and undertakings from examinations for discovery.

The plaintiff sought to compel answers from the defendants and the Attorney General, while the Attorney General sought to compel answers from the plaintiff, clarify the scope of the pleadings, and obtain foundational information for the plaintiff's expert report.

The court ordered the plaintiff to produce a refused sales graph, amend its pleadings to clarify the temporal scope and damages claim, and provide the foundational information for its expert report.

The plaintiff's motion against the Attorney General was dismissed, as the court found the undertaking regarding correspondence with U.S. regulators was adequately answered.

The applicant was successful on a motion for a certificate of pending litigation and in defeating a cross-motion to stay the application.

In determining costs, the court rejected the applicant's revised costs outline, which substantially increased the hours claimed and was submitted after the fact, relying instead on the initial costs outline to protect the integrity of the process.

The court awarded the applicant $30,000 in partial indemnity costs, which included full indemnity costs for an unreasonable motion brought against the applicant's representative.

The plaintiff insurer brought a motion to extend the deadline for setting the action down for trial, effectively seeking to avoid the Registrar's dismissal of the action for delay.

The court applied the test for setting aside a dismissal order, including the Reid factors.

Although the plaintiff failed to adequately explain its 19-month delay or prove inadvertence, the court granted the extension because the defendants failed to establish actual prejudice resulting from the delay.

However, due to the plaintiff's lengthy unexplained delays and conduct, the court ordered the successful plaintiff to pay the defendants $30,000 in substantial indemnity costs.

The defendants brought a motion to set aside a noting in default and default judgment, which was resolved on consent.

The only remaining issue was costs.

The defendants' in-house counsel sought costs against the plaintiff's lawyer personally, alleging he fabricated evidence of a misfiled Notice of Intent to Defend to trap the defendants.

The court found these allegations of professional misconduct to be completely groundless and reprehensible.

As a result, the court dismissed the defendants' costs claim and ordered the defendants to pay the plaintiff and its lawyer $30,592 in substantial indemnity costs.

The moving party sought leave to issue a certificate of pending litigation (CPL) regarding a commercial property, claiming an interest based on a Sales Representation Agreement.

The responding party brought a cross-motion to stay or dismiss the application, arguing the moving party was an unregistered broker under the Real Estate and Business Brokers Act (REBBA) and operated under an unregistered business name contrary to the Business Names Act (BNA).

The Master dismissed the cross-motion, finding the transaction was part of an ongoing business venture rather than a simple real estate trade, and that the business name non-registration was inadvertent.

The Master granted the CPL, noting the moving party established a triable issue regarding its interest in the property, but ordered the CPL postponed to existing and construction financing to avoid harming the development project.

The defendant brought a motion for leave under s. 67(2) of the Construction Lien Act for production and discovery of the plaintiff.

The plaintiff brought a cross-motion for similar relief against the defendant.

The plaintiff had previously set the action down for trial, triggering Rule 48.04(1) of the Rules of Civil Procedure, which requires a substantial and unexpected change in circumstances to grant leave for further discovery.

The court granted the defendant's unopposed motion.

The court dismissed the plaintiff's cross-motion, finding that the plaintiff deliberately chose to set the action down for trial without completing discoveries and failed to meet the strict test under Rule 48.04(1).

Metrolinx, the owner of a construction project, moved to post the agreed basic and notice holdback amounts into court to vacate several subtrade liens and have the actions against it dismissed.

The subtrades consented to the posting but argued Metrolinx should also be required to post security for prejudgment interest and pay their costs.

The Master held that holdback is a retention obligation, not a payment obligation, and therefore does not attract prejudgment interest under the Courts of Justice Act.

However, the Master awarded partial indemnity costs to the subtrades, finding that Metrolinx unnecessarily lengthened the proceedings by aggressively defending the entirety of the subtrade claims instead of posting the holdback early in the litigation.

Following a trial of an issue regarding notice holdback liability under the Construction Lien Act, the plaintiff sought costs.

The defendant argued for no costs due to divided success and public interest.

The court found the plaintiff was the successful party, having established $215,054.80 in holdback liability.

While the court reduced the costs claim for proportionality and divided success, it elevated the base standard to substantial indemnity due to the defendant's capricious conduct regarding a section 39 response.

The plaintiff was awarded $150,000 in costs.

The defendant employee, accused of defrauding the plaintiff employer of over $470,000, brought a motion for further and better documentary production.

The defendant counterclaimed for unpaid loans and wrongful dismissal, alleging she was directed to make cash payments to creditors and others.

The Master granted the motion, ordering broad production of cheques, invoices, bank statements, and financial records, finding that the employer's unorthodox accounting practices and the serious nature of the fraud allegations necessitated extensive documentary discovery to allow forensic reconstruction of the financial history.

The defendant owner in a construction lien action brought a motion for leave under section 56(1) of the Construction Lien Act to join an officer of the plaintiff contractor as a third party.

The proposed third party claim sought contribution and indemnity for allegedly false statutory declarations sworn by the officer.

The court dismissed the motion, finding that the proposed claims were not true claims for contribution and indemnity related to the plaintiff's lien claim, but rather separate claims for damages that resembled trust claims, which are prohibited from being joined with lien claims under section 50(2) of the Act.

In a trial of an issue within a construction lien reference, the court determined the owner's notice holdback liability under s. 24 of the Construction Lien Act.

The subcontractor argued that ten emails constituted written notices of lien.

The court held that a valid written notice of lien requires a clear warning that the dispute has reached the lien stage and that the flow of funds must be interrupted.

Only one email met this requirement.

The court further held that the owner's notice holdback liability was reduced by subsequent payments made by the contractor to the subcontractor, resulting in a final notice holdback liability of $215,054.80.

The defendants brought a motion to discharge a certificate of pending litigation (CPL) registered by the plaintiff buyer on a commercial property.

The plaintiff had failed to close the $75 million transaction on multiple extended closing dates due to lack of financing.

The plaintiff argued the 'time is of the essence' clause had been waived by the defendants' conduct.

The court found no triable issue that the clause was waived, as each extension reaffirmed it and the defendants' subsequent communications were settlement offers, not waivers.

The court discharged the CPL, declared the plaintiff had no interest in the property, and ordered the deposits forfeited.

The defendant brought a motion to set aside a default judgment and to declare the plaintiff's construction lien expired.

The court refused to set aside the default judgment, finding that although service of the statement of claim was technically defective, it came to the defendant's attention in a timely manner.

Furthermore, the defendant failed to provide a plausible excuse for the default or credible evidence of an arguable defence on the merits.

However, the court granted the motion to declare the construction lien expired, as the plaintiff had failed to set the action down for trial within the two-year period required by section 37 of the Construction Lien Act, and a registrar's default judgment does not satisfy this requirement.

The defendants brought a motion for security for costs against the plaintiff, who resides in India.

The plaintiff argued that he was impecunious and had a meritorious claim arising from a motor vehicle accident.

The court found that the plaintiff failed to provide robust financial disclosure to prove impecuniosity.

Furthermore, the court held that the plaintiff did not demonstrate a good chance of success due to a serious limitation period defence, as the action was commenced over five years after the accident.

The motion was granted, and the plaintiff was ordered to post $15,000 in security for costs.

The plaintiff subcontractor, S&K Construction, registered a construction lien against the owner, NAMF, and the general contractor, Hussain, for unpaid work on a gym renovation project.

The central dispute involved the installation of a defective epoxy gym floor.

The court found that both the general contractor and the subcontractor breached their respective contracts by failing to deliver a floor that was smooth enough for gym use.

As a result, the subcontractor's lien claim for the floor work was dismissed.

The owner's claim for the full cost of a replacement pulastic floor was denied due to betterment, but the owner was awarded the cost of removing the defective epoxy.

The subcontractor was awarded a reduced lien amount for authorized non-floor work, and the general contractor was awarded payment for an HVAC unit.