Kevin D. Sherkin

The moving party, a condominium corporation, sought an order under s. 44(2) of the Construction Lien Act to vacate a construction lien registered by the respondent contractor upon posting security in an amount significantly less than the $2,744,377 claimed.

The dispute arose from a fixed-price contract for condominium renovations where the scope of work expanded, leading to unapproved change orders and an extended duration claim.

The court reviewed the evidence and found that while many factual disputes required a trial, certain portions of the lien claim, including specific unapproved change orders and most of the extended duration claim, lacked a proper evidentiary foundation.

The court ordered the lien vacated upon the posting of security reduced by $1,181,833.79 plus HST, along with $50,000 for costs.

This is a costs endorsement following an appeal where the Court of Appeal set aside the order of the application judge dated October 5, 2015.

The parties had contested two issues on the application with divided success.

The application judge had reduced the respondent's costs from an agreed amount of $42,500 to $30,000 due to partial success.

On appeal, the Court of Appeal determined that the appellant succeeded on both issues argued at the application and therefore was entitled to the full agreed costs amount of $42,500 for the application below, in addition to $20,000 for the costs of the appeal.

The Appellants appealed a Master's order that dismissed their motion to dismiss an action for delay.

The action, concerning condominium construction deficiencies from 2004, was commenced in 2014, but the plaintiff failed to serve most defendants or advance the litigation.

The Master found the plaintiff's explanation for delay unsatisfactory but dismissed the motion, inferring document preservation.

The Superior Court found the Master erred in fact and law, particularly regarding the plaintiff's lack of explanation for delay, the strong presumption of prejudice due to the expired limitation period and passage of time, and the plaintiff's failure to rebut this presumption with evidence of available witnesses and documents.

The appeal was allowed, and the action was dismissed against the Appellants. interesting_citations_summary: > This decision clarifies the application of Rule 24.01(1)(a) for dismissal for delay, emphasizing the plaintiff's onus to provide a reasonable explanation for delay and to rebut the presumption of prejudice, especially when a limitation period has expired.

It reiterates that the absence of an explanation for delay can be fatal and highlights the "culture shift" in litigation towards timely resolution, as articulated in Hyrniak and Jordan.

The case also reinforces the standard of review for Master's orders, requiring palpable and overriding error for factual findings and correctness for errors of law or principle. final_judgement: > The order of Master Muir dated February 13, 2015, is set aside, and the action is dismissed as against the Appellants for delay.

The Plaintiff is ordered to pay the Appellants’ costs of the appeal on a partial indemnity scale, with submissions to follow. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2017 decision_number: 6868 file_number: "CV-14-119561-00" source: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc6868/2017onsc6868.html" keywords: - dismissal for delay - civil procedure - appeal - Master's order - prejudice - limitation period - Rules of Civil Procedure - construction litigation - condominium - Hyrniak - Jordan areas_of_law: - Civil Procedure - Civil Litigation - Construction Law cited_cases: legislation: - title: "Rules of Civil Procedure" url: "https://www.ontario.ca/laws/regulation/900194" case_law: - title: "Housen v. Nikolaisen, 2002 SCC 33" url: "https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1964/index.do" - title: "Berg v. Robbins, 2009 ONSC 6159" url: "https://www.canlii.org/en/on/onsc/doc/2009/2009onsc6159/2009onsc6159.html" --- 2017 ONSC 6868 # Court File and Parties **COURT FILE NO.:** CV-14-119561-00 **DATE:** 20171116 **ONTARIO SUPERIOR COURT OF JUSTICE** **BETWEEN:** **York Region Standard Condominium Corporation No. 1039** Plaintiff – and – **The Corporation of the Town of Richmond Hill, Rosehill Suites Inc., Tarion Warranty Corporation, Dean Artenosi, Joseph Battaglia Architect, Arten Developments Inc., The Arten Group Inc., Principally Green Limited, 1041549 Ontario Limited carrying on business under the firm name and style Tristar Engineering, Arten Developments carrying on business under the firm name and style The Manners of Roseview Grand, Arten Developments on business under the firm name and style The Rosehill, Socia Engineering Limited, John Doe Bricklayers, Jane Doe, Adam Doe, Andrew Doe, Anthony Doe, Alex Doe, Adrian Doe, Anna Doe, Alicia Doe, Alice Doe, Amy Doe and Amanda Doe** Defendants **COUNSEL:** Patrick Di Monte for the Plaintiffs/Responding Parties K. Sherkin, R. Wozniak for the Defendants/Moving Parties **HEARD:** September 1, 2017 **Woodley, J.** # REASONS FOR DECISION ON APPEAL OF MASTER’S ORDER ## OVERVIEW [1] The Appellants, (Rosehill Suites Inc., Dean Artenosi, Arten Developments Inc., The Arten Group Inc., Principally Green Limited and Arten Developments), appeal the Order of Master Muir dated February 13, 2017 which dismissed the Appellants’ motion to dismiss the action against them (but not all of the defendants) for delay pursuant to [Rule 24.01(1)(a) of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194) (the “Rules”). [2] The Appellants submit that the Master erred in fact and in law in finding that the Plaintiff has: a) Provided a reasonable explanation for its failure to take any steps to prosecute this action concerning a construction project completed in 2004 since it was filed on August 1, 2014; b) Rebutted the presumption of prejudice to the Appellants resulting from the Plaintiff’s delay; and, c) Proven that all material witnesses and documents are available such that a fair trial of this action is possible. ## FACTS [3] The Plaintiff’s action arose out of the construction of a condominium complex located in Richmond Hill, Ontario (the “Development”).

Construction of the Development was completed in 2004. [4] The Plaintiff commenced the within action on August 1, 2014.

The Plaintiff claims damages of $1,000,000.00 as against all Defendants, jointly and severally, for negligence. [5] The Plaintiff alleges that the Development was negligently constructed resulting in visible defects in the brick exterior of the structure (the “Deficiencies”).

The Plaintiff further alleges that it first learned of the Deficiencies on August 5, 2012 when it received an inspection report from “Best Consultants, Martin Gersup Architect Inc.” [6] As of February 2017, the Plaintiff had served only two (2) of the 23 Defendants; The Corporation of the Town of Richmond Hill (“Richmond Hill”) and Tarion Warranty Corporation (“Tarion”). [7] On February 13, 2017, the Appellants (after previously advising the Plaintiff’s lawyer several times of the need to obtain an order extending the time for service of the Statement of Claim) moved before Master Muir for an order pursuant to [rule 24.01(1)(a) of the Rules](https://www.ontario.ca/laws/regulation/900194) dismissing this action as against them for delay. [8] In support of the February 13, 2017 motion, the Appellants filed an affidavit sworn by the Defendant Dino Artenosi (“Artenosi”) confirming that: a) He was, at all material times, the controlling mind of the Appellants; b) Construction of the Development was completed in 2004; c) The Appellants’ records have been purged, as it has been over 12 years since the Development was built; d) The Appellants did not learn of the existence of the Statement of Claim until on or about June 25, 2015, when Artenosi was served with the Cross-claims of Richmond Hill and Tarion; e) On October 21, 2015, November 10, 2015 and December 1, 2015, the Appellants’ lawyers wrote to the Plaintiff’s lawyer, Patrick Di Monte (“Di Monte”), advising that the Appellants had not been served with a copy of the Statement of Claim in accordance with [rule 14.08 (1) of the Rules](https://www.ontario.ca/laws/regulation/900194) and as such the Plaintiff requires an order extending the time for service of the Statement of Claim; f) Despite the above-referenced correspondence, the Plaintiff took no steps to seek an order for an extension of time to serve the Statement of Claim on the Appellants; and g) The Claim has not advanced beyond the pleadings stage. [9] The Plaintiff did not seek to cross-examine Artenosi on his affidavit. [10] On January 31, 2017 and February 8, 2017, Di Monte faxed to the Appellants’ lawyers two (2) affidavits sworn by Di Monte’s legal assistant, Ms. Deborah Merrill (“Merrill”), wherein Merrill details Di Monte’s unsuccessful efforts to serve some of the named Defendants in this action. [11] Merrill’s affidavit does not provide any explanation for: (i) the Plaintiff’s delay; (ii) for the Plaintiff’s failure to seek an order for substituted service in light of Di Monte’s unsuccessful attempts to serve all of the Defendants in accordance with the Rules; or, (iii) for the Plaintiff’s failure to seek an order extending the time for serving the Statement of Claim. [12] Moreover, Merrill’s affidavit does not provide any evidence that: (a) demonstrates that all relevant witnesses and documents are available; or (b) refutes Artenosi’ affidavit evidence. [13] By Endorsement dated February 13, 2015, Master Muir dismissed the Appellants’ motion for the following reasons: “I am not satisfied with the Plaintiff’s explanation for delay.

Even accepting the inaccuracy of the information on the Moving Defendants’ corporation profile reports, there is simply no evidence of any follow up or investigation once the Plaintiff knew the Defendants could not be found at the registered addresses.

Moreover, the Plaintiff has still not brought a motion to extend time or to validate service.

Although the principal obligation regarding prejudice rests with the Plaintiff, there is at least some obligation on the Moving Parties to demonstrate actual prejudice if it exists.

They point to the fact that they no longer have their documents and the project took place many years ago.

However, the Defendants have not stated when their documents were destroyed…It does appear that the Plaintiff’s documents are available and I infer that the documents of the individual Defendants have been preserved.

Overall, the Plaintiff’s explanation need not be perfect.

It simply needs to be adequate and I am of the view that the Plaintiff has met its onus, although barely so.” ## GROUNDS FOR APPEAL [14] The Appellants submit that Master Muir erred in fact and in law by: a) Finding that the Plaintiff furnished evidence of a satisfactory explanation for its delay despite: (i) the fact that the Plaintiff did not, provide any explanation for its delay; and (ii) Master Muir’s finding that he was “not satisfied with the Plaintiff’s explanation for delay”; b) Finding that “the Plaintiff’s documents are available” and inferring that the documents of the individual defendants have been preserved despite the fact that the Plaintiff filed no evidence addressing that aspect of the motion; and c) Finding as a matter of law, the onus of demonstrating actual prejudice rested with the Appellants despite the fact that the applicable limitation period expired in August 2014 (i.e., during the period of the Plaintiff’s delay) and the material events in question occurred in 2004. ## ANALYSIS AND THE LAW ### Standard of Review [15] An appeal from a decision of a master will only succeed if there has been an error of law, if the master exercised his discretion on wrong principle or if he misapprehended the evidence such that the decision contains a palpable and overriding error: [Housen v. Nikolaisen, 2002 SCC 33](https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1964/index.do), [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 211 D.L.R. (4th) 577. ### Applicable Test for Dismissal for Delay [16] [Rule 14.08(1)](https://www.ontario.ca/laws/regulation/900194) states that where an action is commenced by a statement of claim, the claim “shall be served within six months after it is issued”. [17] [Rule 24.01(1)(a)](https://www.ontario.ca/laws/regulation/900194) allows a defendant who is not in default under the Rules, or an order of the court, to move to have an action dismissed for delay where the plaintiff has failed to serve a statement of claim “on all of the defendants” within the a time prescribed by [Rule 14.08](https://www.ontario.ca/laws/regulation/900194). [18] On a motion to dismiss brought pursuant to [rule 24.01(1)](https://www.ontario.ca/laws/regulation/900194) the defendant must show either that: a) The plaintiff’s default has been “intentional and contumelious” – i.e., that the plaintiff or his or her lawyers have demonstrated a disdain or disrespect for the court’s process; or that b) There has been: i.

An inordinate delay for which the plaintiff or his or her lawyers are responsible; ii.

The delay is “inexcusable”, meaning that the plaintiff has failed to proffer evidence that adequately explains the delay; and, iii.

The delay has given rise to a substantial risk that a fair trial of the action will not be possible – i.e. that the defendant has suffered real prejudice as a result of the delay. [19] Any delay by a plaintiff in the prosecution of an action requires an explanation.

The onus rests with the plaintiff to show that the delay was not intentional.

In order to be accepted, the plaintiff’s explanation must be “reasonable and cogent” or “sensible and persuasive”. [20] However, as the Ontario Divisional Court held in [Berg v. Robbins, [2009] O.J. No. 6159](https://www.canlii.org/en/on/onsc/doc/2009/2009onsc6159/2009onsc6159.html) (“Berg”) at paragraph 13, “[i]n the absence of an explanation from the plaintiff for the delay, it is to be presumed that the delay was intentional, and that would appear to be the end of the matter.” [21] The inordinance of the delay is measured by reference to the length of time from the commencement of the proceeding to the motion to dismiss. [22] Lastly, in deciding whether a fair trial is still possible notwithstanding a plaintiff’s delay, the court must determine whether the defendant has suffered either deemed prejudice or actual case-specific prejudice. [23] Deemed prejudice will arise where the applicable limitation period expired during the applicable period of delay. [24] Prejudice is also inherent in long delays since memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost.

Thus, the longer the delay, the stronger the inference of prejudice to the defences’ case flowing from that delay. [25] Where a presumption of prejudice arises, the evidentiary onus shifts to the plaintiff to rebut the presumption by leading credible evidence showing: (a) that all necessary documents have been preserved; (b) the identities of all necessary witnesses; and (c) that all of the necessary documents and witnesses “with detailed recollection of events” are available. [26] For instance, in [Berg, supra](https://www.canlii.org/en/on/onsc/doc/2009/2009onsc6159/2009onsc6159.html), the Divisional Court held that the passage of 11 years between the occurrence of the events that give rise to the action and the defendant’s motion to dismiss for delay gave rise to a presumption of prejudice that the plaintiff failed to rebut.

As a result, the Divisional Court allowed the appeal and dismissed the action. [27] In the absence of deemed prejudice, a defendant must lead evidence demonstrating that it has suffered actual, or case-specific, non-compensable prejudice, such as evidence that a material witness has died or is no longer capable of recalling material events, or that evidence has been lost. [28] An order of a master, whether final or interlocutory, will only be interfered with if the master made an error of law or exercised his or her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error. [29] Thus, if a master errs in law, or exercises his or her discretion on an incorrect principles, the applicable standard of review will be correctness.

Otherwise, the applicable standard of review will be palpable and overriding error. ### Palpable and Overriding Errors of Fact [30] The Appellants submit that there was no reasonable basis on the evidence filed with the Court for the Master’s finding that the Plaintiff adequately explained its delay or demonstrated that all material witnesses and documents are available such that a fair trial is possible. [31] I accept the Appellants’ submissions in this regard on the basis of the following: a. the only evidence filed by the Plaintiff explaining delay was the affidavit evidence of the Plaintiff counsel’s legal assistant, who details unsuccessful attempts to serve some but not all of the defendants.

However, no explanation is provided why the Plaintiff has not moved the action forward, brought a motion for substituted service, or, brought a motion extending the time for service since the claim was issued on August 1, 2014; and b. the Master found that the “Plaintiff’s documents are available” and inferred that the “documents of the individual Defendants have been preserved” despite the fact that the Plaintiff did not adduce any evidence demonstrating that relevant documents have been preserved or that necessary witnesses are available and despite the fact that the Appellants specifically advised that the Appellant’s records have been purged and are no longer available. ### Errors in Law [32] The Appellants further submit that the Master committed several errors of law in dismissing the Appellants’ motion. [33] I accept the Appellants’ submissions in this regard based on the following: a. the Plaintiff’s failure to provide any explanation for its delay is in and of itself fatal.

As noted by the Divisional Court in [Berg, supra](https://www.canlii.org/en/on/onsc/doc/2009/2009onsc6159/2009onsc6159.html), “the absence of an explanation from the plaintiff for the delay…would appear to be the end of the matter”; b. the expiration of the applicable limitation period (being August 5, 2014), and the passage of 13 years since the completion of the Development gives rise to a strong presumption of prejudice.

The Plaintiff therefore had the onus of rebutting that presumption by filing credible evidence demonstrating that material witnesses and documents are available, which it did not do; and c.

Finally, the Master failed to apply the proper legal principles that apply on a motion brought pursuant to [rule 24.01(1)(a)](https://www.ontario.ca/laws/regulation/900194) - namely: i.

The delay in this case was excessive as no steps were taken to advance the litigation since the Statement of Claim was filed on August 1, 2014; ii.

The Plaintiff provided no explanation for its delay; iii.

There is a strong presumption of prejudice given the expiration of the limitation period and the passage of time since the events occurred; iv.

The Plaintiff did not file any evidence capable of demonstrating that material witnesses and documents are available; and v. The Appellants provided evidence of specific prejudice (purging of documents and unavailability of witnesses) which evidence was not considered. ## Conclusion [34] There is a culture shift in the litigation landscape heralded by the Supreme Court of Canada in Hyrniak which shift has been aided and abetted by Jordan. [35] Civil matters are not exempt from the modern litigation cultural shift.

The days are past when civil actions are allowed to slumber in court filing cabinets for years on end. [36] Procedural fairness, proportionality, and a timely hearing on the merits are attainable objectives.

The Rules of Civil Procedure safeguard the litigation process and where lengthy unexplained delays lead to specific prejudice the Rules must be strictly applied. # ORDER ON APPEAL [37] For the reasons noted herein, I hereby Order: a) That the order of Master Muir dated February 13, 2015, is set aside and the within action is dismissed as against the Appellants for delay; and b) Subject to any Offers to Settle that may affect costs, the Plaintiff shall be required to pay the Appellants’ costs of the within appeal on a partial indemnity scale, inclusive of taxes and disbursements.

The Appellants shall serve and file their costs submissions within 30 days of the date herein limited to three pages with any offers to settle and a bill of costs attached.

The Plaintiff shall serve and file their reply cost submissions within 45 days of the date herein limited to three pages with any offers to settle and a bill of costs attached.

The Appellants shall serve and file and responding cost submissions within 60 days of the date herein limited to one page.

Justice S.J. Woodley Released: November 16, 2017 York Region Stnd.

Condo Corp. v. Corp. Town of Richmond Hill et al CV-14-119561-00 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: York Region Stnd.

Condo Corp. v. Corp. Town of Richmond Hill et all REASONS FOR JUDGMENT on appeal Justice S.J. Woodley Released: November 16, 2017

The applicant and respondent, corporate entities controlled by a son and father respectively, jointly owned a commercial property.

The applicant sought an order for the sale of the property under the Partition Act, which the respondent opposed, citing malicious conduct and a contractual right of first refusal.

The respondent also claimed unpaid rental income.

The court held that the applicant had a prima facie right to sell the property and had not acted maliciously, but was bound by the right of first refusal.

The court ordered that the applicant's prior offer to sell its interest to the respondent remain open for an additional 60 days, after which the property could be sold on the open market if no agreement was reached.

The court also ordered the applicant to pay the respondent its share of outstanding rental payments.

The appellants appealed a trial judgment that imposed a constructive trust over their properties, declared that Venanzio Pingue was not a shareholder of the respondent company, and removed him as an officer and director due to breach of fiduciary duties.

The trial judge found that Venanzio had misappropriated $592,671.43 from the company and never paid for his shares.

The appellants argued the trial judge erred in interpreting the parties' written agreements and in refusing to admit their expert report.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's interpretation of the agreement or her discretionary decision to exclude the late expert report.

The court also dismissed the motion to admit fresh evidence and the motion for leave to appeal the costs order.

The lien claimants appealed a decision declaring that the respondent's mortgage had priority over their construction liens.

The respondent challenged the Divisional Court's jurisdiction, arguing the priority decision was not a 'judgment' under the Construction Lien Act.

The court held it had jurisdiction because the priority decision was a final order.

On the merits, the court upheld the motions judge's factual finding that the mortgage funds were advanced to the owner as a joint borrower, rather than merely serving as collateral security, thereby giving the mortgage priority under section 78(6) of the Act.

The appeal was dismissed.

This partial judgment addresses cross-applications between the Fenwicks (purchasers) and Concierge Auctions ULC (auctioneer) regarding a $430,000 buyer's premium held in court.

The dispute arose after a real estate auction failed to close due to vendor mortgage issues, leading the Fenwicks to enter a second agreement to purchase the property directly from the vendors.

Concierge claimed the buyer's premium, arguing the second sale was an extension of the first, while the Fenwicks contended the original sale's failure negated Concierge's entitlement.

The court found the two agreements constituted one continuous transaction, entitling Concierge to the buyer's premium plus HST and pre-judgment interest, and dismissed claims of unjust enrichment and quantum meruit.

The applicants sought to remove the respondent from his position as mayor due to alleged conflicts of interest, but their applications were dismissed.

This endorsement addresses the respondent's request for costs.

The court awarded the respondent partial indemnity costs, totaling $78,298.93, to be paid by the applicants.

Kelly Darnley was ordered to pay $66,298.93 and Charles Bristoll $12,000.

The court declined substantial indemnity costs, finding the applicants' conduct not reprehensible, but noted their broad and unsupported allegations unnecessarily increased complexity.

The appellant registered a claim for lien against condominium units owned by the respondent for work supplied to the developer.

The Master discharged the lien and certificate of action, finding the respondent was not an 'owner' under the Construction Lien Act and the appellant failed to properly preserve and perfect the lien by not naming the respondent.

The Divisional Court dismissed the appeal, upholding the Master's findings that the appellant had no valid lien rights against the respondent's units and affirming the Master's award of substantial indemnity costs due to the appellant's conduct.

This is a costs endorsement following an appeal of a partial summary judgment motion.

The appellants sought rescission of an agreement of purchase and sale and damages, with their claims being representative of 20 other similar outstanding actions.

The Court of Appeal allowed the appeal in part, awarding rescission to one appellant and damages to another (with calculation to be determined by the Superior Court).

The court addressed the costs of the partial summary judgment motions, considering offers to settle that included interest provisions and applied to multiple similar claims.

The court awarded costs to the appellants for the partial summary judgment motions while reducing the amount claimed due to the dismissal of motions against three individual defendants and the ongoing nature of the claims.

The appellant appealed from a Superior Court decision that found a commercial lease for fitness club premises did not include the basement, despite the tenant's long-standing use of it.

The Court of Appeal reversed, holding that when the lease is interpreted in light of all surrounding circumstances—particularly email correspondence between the parties' lawyers—the parties clearly intended to lease the entire premises, including the basement, on a lump sum basis.

The court found the application judge erred in law by failing to consider all relevant circumstances, despite acknowledging the need to do so.

In a priority dispute under the Construction Lien Act, the court determined the relative priorities of several mortgagees and construction lien claimants.

The court held that professional fees incurred by a first mortgagee to protect its security constituted an 'advance' under section 78(6) of the Act, granting it priority.

The court also found that a $10 million advance made jointly to two borrowers under a second mortgage was an advance in respect of that mortgage, giving it priority over the lien claimants.

However, the court ruled that an advance made under a loan agreement to a third party was not an advance in respect of a collateral mortgage given by the developer as guarantor, meaning the lien claimants had priority over the collateral mortgage.

The applicants sought declarations that the respondent, the mayor of Caledon, contravened the Municipal Conflict of Interest Act by voting on land development matters in which he allegedly had a pecuniary interest.

The court found no evidence that the respondent had a direct or indirect pecuniary interest in the matters voted upon, noting that his property was located several kilometers away from the developments and any potential development of his land was decades in the future.

Both applications were dismissed.

The moving party, Pacific Hardwood Limited, was entirely successful on a motion to discharge a construction lien registered by the responding party, Dolvin Mechanical Contractors Ltd. The parties could not agree on costs and filed written submissions.

The court found that the responding party had improperly registered a $2.3 million lien against the moving party's property without a contract and failed to perfect it.

Due to the responding party's conduct in refusing to release the lien and unnecessarily delaying the motion, the court awarded costs to the moving party on a substantial indemnity basis in the amount of $23,493.50.

The appellants purchased luxury hotel condominium units in the Trump International Hotel based on financial estimates provided by the developer, Talon.

The estimates projected significant returns but were based on uninformed opinions and understated expenses.

The appellants sued for misrepresentation.

The motion judge dismissed their claims, finding their reliance on the estimates unreasonable and barred by entire agreement clauses.

The Court of Appeal reversed, holding that reliance was reasonable and it would be unconscionable to enforce the exculpatory clauses given Talon's evasion of Securities Act protections.

The Court ordered rescission for one appellant and damages for the other.

The applicant brought a motion to consolidate or hear together two applications seeking the removal of a mayor and a councillor for alleged breaches of the Municipal Conflict of Interest Act.

The court dismissed the motion, finding that one of the applications had already been fully argued and was no longer 'pending' as required by Rule 6.01.

Furthermore, the court held that the applications required individualized reviews of separate impugned votes, meaning there were no common material facts that would justify joinder or risk inconsistent judicial findings.

Pacific Hardwood Limited, a non-party owner of two condominium units, brought a motion to discharge a construction lien registered by Dolvin Mechanical Contractors Ltd. against its units.

Dolvin had contracted with the developer prior to condominium registration but registered its lien after Pacific purchased the units, without naming Pacific as an owner.

The court granted the motion, finding that Dolvin had no lien rights against Pacific, failed to properly preserve and perfect its lien against Pacific, and that the conveyance to Pacific was not void under section 80(2) of the Construction Lien Act.

The applicant, Saeed Yahyavi, brought an emergency motion to restrain the sale of his home by the respondent, Nadi Inc., under power of sale.

The applicant alleged that Nadi Inc. failed to disclose and account for a $250,000 payment received from a settlement in a fraudulent conveyance action, which should have been credited against the judgment debt secured by the mortgage on his home.

The court found that Nadi Inc. knowingly misstated the amount due in the notice of sale by improperly characterizing the settlement funds as punitive damages and costs rather than a realization on the judgment.

The court declared the notice of sale void and enjoined Nadi Inc. from completing the sale.

The applicant was ordered to pay $1,100,000 into court, and the issues regarding the proper amount due were referred to a Master for accounting.

Following the dismissal of the moving parties' motion for a Mareva injunction, the respondents sought their costs.

The court awarded substantial and full indemnity costs to the respondents, totaling over $126,000, finding that the moving parties had made serious, unfounded allegations of fraud and breach of trust, and had engaged in inappropriate conduct by raising unrelated regulatory issues to smear certain respondents.

The applicant alleged racial discrimination when she was denied the ability to sit and drink her coffee at a Bagel World franchise.

The franchisee subsequently went bankrupt, and the applicant sought to hold the franchisor vicariously liable.

The Tribunal held a summary hearing to determine if the application against the franchisor had a reasonable prospect of success.

Finding that the franchise agreement and evidence demonstrated the franchisor did not exercise substantial control over the day-to-day operations or employees of the franchisee, the Tribunal concluded the franchisor could not be held vicariously liable under section 46.3(1) of the Human Rights Code.

The application against the franchisor was dismissed.