Julie Parla

The moving party, Unity Health, sought summary judgment to dismiss four actions brought by subcontractor plaintiffs, arguing that the plaintiffs' settlement with the surety (Zurich) constituted an inconsistent election that precluded their alternative claims against Unity Health.

Unity Health also sought to dismiss the plaintiffs' unjust enrichment claims and, alternatively, to stay two of the actions for failure to immediately disclose the settlement.

The court dismissed the motions, finding genuine issues for trial regarding the doctrine of inconsistent election and the unjust enrichment claims.

The court also held that the settlement was disclosed in a timely manner once it was finalized, so a stay was not warranted.

Three lien claimants brought a motion in a receivership proceeding to determine the proper interpretation of s. 78(2) of the Construction Act regarding priority over building mortgages.

The claimants argued they were entitled to priority for the holdback deficiency against each building mortgage individually, effectively multiplying their priority amount.

The court dismissed the motion, holding that the lien claimants' priority is limited to the extent of the single deficiency in the owner's holdback over all building mortgages combined, as multiplying the priority would be contrary to the statutory scheme and unfairly prejudice subsequent encumbrancers.

The applicant, a former officer of a municipally-owned utility corporation, sought indemnity and advancement of legal costs for his participation in a judicial inquiry investigating the sale of the utility's shares.

The respondent corporation denied the request, arguing the inquiry was not a proceeding that triggered the indemnity bylaw and that allegations of possible misconduct precluded advancement.

The court held that the inquiry was a proceeding under the bylaw and that section 136 of the Business Corporations Act provided discretionary authority to order advancement of costs.

The court ordered the respondent to advance the applicant's legal costs for the ongoing phase of the inquiry, subject to repayment if the applicant is ultimately found not to have acted honestly and in good faith.

The moving party brought a motion under Rule 34.10 of the Rules of Civil Procedure to compel the responding parties to produce documents in advance of cross-examinations on affidavits sworn in support of the responding parties' summary judgment motions.

The responding parties argued the motion was prohibited under Rule 48.04(1) because the action had been set down for trial, and that the requests were disproportionate.

The court held that Rule 48.04(1) did not bar the motion and the moving party had not waived the right to documentary discovery.

However, because the responding parties had never served affidavits of documents, the court dismissed the motion without prejudice, directing the responding parties to first serve affidavits of documents so that relevance and proportionality could be properly assessed.

The applicant, Covanta, brought an application to set aside an arbitrator's decision to join two subcontractors to an ongoing arbitration between Covanta and the general contractor.

The arbitrator had joined the subcontractors under Article 17(5) of the UNCITRAL Arbitration Rules.

Covanta argued the arbitrator exceeded his jurisdiction because the subcontractors were not parties to the arbitration agreement.

The Superior Court of Justice held that the arbitrator's decision was jurisdictional in nature and subject to review on a standard of correctness.

The Court found that the subcontractors were not parties to the arbitration agreement, as the subcontract did not properly incorporate the arbitration clause by reference.

The Court set aside the arbitrator's ruling and awarded costs of $50,000 to the applicant.