Justin Paul Baichoo

The moving party plaintiffs brought a motion to extend the time for service of a new expert appraisal report and for leave to amend their statement of claim to increase the damages claimed, arising from a failed real estate transaction.

The original appraisal experts had retired and were unable to testify, necessitating a replacement report.

The court found a reasonable explanation for the late service, no uncompensatable prejudice to the responding defendants, and no undue trial delay given the trial was set 11 months away.

Leave to serve the replacement appraisal was granted, as was the amendment to increase the quantum of damages claimed from $75,000 to $125,000, with costs thrown away to be quantified by the trial judge.

This decision addresses the costs arising from the Defendants' successful motion to set aside a noting in default and default judgment obtained by the Plaintiffs.

The court found the Plaintiffs acted unreasonably by obtaining default judgment despite knowing the Defendants intended to defend, and by resisting reasonable offers to set it aside.

The Plaintiffs further complicated the matter with voluminous materials and a dubious cross-motion.

The Defendants were awarded partial indemnity costs of $72,022.27, fixed and payable forthwith.

The Plaintiffs brought a summary judgment motion seeking damages and costs arising from the Defendants' failure to close an agreement of purchase and sale for a property.

The Defendants argued the Plaintiffs breached the contract and sought their own damages, but had not filed a counterclaim.

The court found the Defendants were in breach of contract due to their unwillingness to close the transaction, primarily due to an outstanding writ of execution.

The Plaintiffs were awarded specific damages for the deposit, property taxes, and moving expenses to rental accommodation.

The court also awarded litigation costs, but significantly reduced the amount claimed by the Plaintiffs, emphasizing proportionality and the Plaintiffs' failure to respond to a settlement offer.

A portion of damages for additional living expenses was deferred for further assessment.

The court issued an endorsement following the dismissal of the plaintiff's summary judgment motion on a mortgage guarantee.

This endorsement addresses the costs of that motion and the plaintiff's subsequent request for a mini-trial or expedited trial.

The court reserved the costs of the summary judgment motion to the trial judge, finding it more just given that the claims and defences remained live and the work done would reduce trial costs.

The plaintiff's request for a mini-trial was denied, as it would not allow for proper development of defences due to prior evidentiary deficiencies and lack of discovery.

The court reiterated the need for a case conference to address the action's progress, particularly in light of a key individual's failing health, and to consider an expedited trial.

The plaintiff, 2383431 Ontario Inc., sought summary judgment against individual defendants who guaranteed a mortgage for Rose of Sharon (Ontario) Retirement Community.

The defendants argued the guarantee was limited to interest only and raised equitable defences related to construction defects and the relationship between the original mortgagee (IWOK) and the builder (Unimac).

The court dismissed the motion for summary judgment, finding that the complex factual matrix, including the disputed scope of the guarantee and the relationships between the parties, presented genuine issues requiring a trial.

The judge emphasized that the record did not allow for confident findings of fact or a proportionate resolution of the dispute.

This motion concerned undertakings and refusals in cross-examinations related to a charging order sought by BPR Litigation Lawyers against bond funds held for Unimac Group Ltd. Trisura Guarantee Insurance Company, an interested third party, challenged the quantum of the charging order and the extent of solicitor-client privilege claimed by Unimac/BPR.

The court determined that Trisura was entitled to question the quantum of the charging order and that privilege did not extend to descriptions of work performed in work-in-progress reports, but did protect confidential solicitor-client communications and business judgment decisions.

The moving parties, Antonio Ferrara (in trust) and Astoria Homes Inc., sought to strike a third-party claim brought by the Marcheses against Antonio Ferrara in his personal capacity.

The third-party claim was issued without consent or leave of the court, contrary to Rule 29.02.

The court found that while an irregularity occurred, leave would have been granted had it been sought, as no prejudice to the plaintiffs was demonstrated.

Furthermore, the irregularity was cured by the moving parties taking fresh steps in the litigation after becoming aware of the third-party claim.

The application to strike was dismissed.

This decision addresses two motions brought by Trisura Guarantee Insurance Company in the context of construction lien proceedings.

The first motion sought to set aside a charging order obtained by BPR Litigation Lawyers against a construction lien bond without notice to Trisura.

The second motion sought leave to pursue exoneration and payment out of the bond.

The court found that Trisura did not require leave to challenge the charging order, had standing due to its direct proprietary and economic interests under an Indemnity Agreement, and consequently, the charging order was set aside for lack of notice.

However, the court denied Trisura leave to bring its motion for exoneration within the construction lien actions, determining that such a claim, based on a separate Indemnity Agreement, did not expedite the resolution of the lien issues and was already the subject of a separate action in Toronto, posing a risk of inconsistent findings.

Following the plaintiff’s success on a summary judgment motion, the court determined the appropriate quantum and scale of costs.

The plaintiff sought approximately $27,000 on a substantial indemnity basis, arguing the defendant advanced meritless defences.

The defendant argued the motion was straightforward and proposed costs of about $5,000.

Applying the principle that costs must be fair and reasonable from the perspective of the unsuccessful party, the court declined to award substantial indemnity costs.

Costs were fixed at $15,000 plus HST and disbursements.

Following a successful motion by the defendant foundation to vacate multiple construction liens upon payment into court of the general contractor’s lien amount, the court addressed costs.

The moving party had previously served an offer to settle that closely mirrored the relief ultimately granted.

The unsuccessful plaintiff opposed the motion and declined the offer.

Applying the principles governing costs and considering the settlement offer and the reasonable expectations of litigation expense for such a motion, the court fixed costs in favour of the moving party at the higher end of the anticipated range.

Appeal from a Master’s order staying an action commenced in Newmarket relating to a construction project that was also the subject of multiple lien proceedings in Toronto.

The Master had concluded that the proceedings involved overlapping facts and legal issues and ordered a stay of the entire Newmarket action pending resolution of the Toronto lien action.

The Superior Court held that the Master lacked jurisdiction to grant a stay of the separate action because such relief must be granted by a judge under the Courts of Justice Act and the Rules of Civil Procedure.

The court further found that the Master erred by granting relief beyond what was requested in the notice of motion, contrary to principles of procedural fairness.

The appeal was allowed and the stay order set aside, but the court ordered that non‑trust claims from the Newmarket action be incorporated into the Toronto lien proceedings while permitting the trust claims to proceed separately.

A project owner sought an order vacating multiple construction liens by paying security into court equal to the general contractor’s lien claim plus security for costs.

The contractor argued the owner should be required to post security covering both the contractor’s lien and additional subcontractor lien claims.

The court applied s. 17 of the Construction Lien Act, holding that subcontractors claiming through a contractor are limited to the amount owed by the owner to that contractor, absent holdback breaches.

Because the subcontractor claims arose through the contractor and were largely subsumed within the contractor’s lien claim, the owner was not required to post additional security for them.

The court ordered the liens vacated upon payment of the contractor’s lien amount plus security for costs.

A subcontractor brought a motion for summary judgment against a general contractor for unpaid amounts arising from asphalt paving work performed pursuant to a purchase order for a retirement home construction project.

The contractor resisted payment, alleging deficiencies in the work, unauthorized extras, and non-payment by the project owner.

The court found the subcontractor’s documentary evidence regarding the extras and completion of the work to be uncontradicted and drew an adverse inference from the contractor’s failure to provide affidavit evidence from the on-site representative with direct knowledge.

The court held that the subcontract did not make payment conditional upon the contractor receiving payment from the owner.

Finding no genuine issue requiring a trial under the summary judgment test, the court granted judgment for the subcontractor for the claimed amount plus pre-judgment interest and costs.

Following a contempt motion between the plaintiff and defendants, the court addressed costs.

Although the defendants successfully defended the contempt motion, the court found it more likely than not that one defendant removed certain logbooks in contravention of court orders, which militated against awarding costs to the defendants.

The plaintiff also failed on the motion and therefore was not entitled to costs.

However, a non-party that participated in the proceedings was awarded substantial indemnity costs due to its limited but necessary involvement.

The court ordered the plaintiff to pay the non-party $25,000 plus HST and disbursements.