Krista J. McKenzie

Following a summary judgment mini-trial where the plaintiff was awarded $559,926.18 for breach of trust under the Construction Act, the court determined costs and interest.

The court found the defendants' withholding of trust funds to be unreasonable and unjustified, warranting substantial indemnity costs.

The plaintiff was awarded $131,776.36 in costs and pre-judgment interest at 1.5%.

This appeal arose from the seizure of heavy construction equipment without notice following a default on a promissory note and an unassumed lease.

The trial judge had dismissed the appellants' counterclaim, concluding that no notice was required under the Personal Property Security Act (PPSA).

The Court of Appeal allowed the appeal, holding that the common law duty to provide reasonable notice before seizing secured assets (the Lister v. Dunlop principle) was not displaced by the PPSA.

Furthermore, the Asset Purchase Agreement (APA) explicitly required 15 days' notice, and the doctrine of merger did not apply to this personal property transaction.

The court also found that the trial judge erred in holding Mr. Priest personally liable for the unassumed excavator lease, as he was not a party to that specific agreement.

The cross-appeal regarding the trial judge's re-calculation of damages in the main action was dismissed, as no error in principle was identified.

The case was remitted to the Superior Court for an assessment of damages on the counterclaim.

The plaintiff, Trisan Construction, brought a second motion for summary judgment against its former lawyer, Mark A. Epstein, to quantify damages arising from Epstein's admitted negligence.

Epstein had failed to advise Trisan of their ability to bring a breach of trust claim against the directors of Bianchi Contracting (2004) Inc. (BCI) under the Construction Lien Act.

The court found that Epstein's negligence caused Trisan to suffer damages and, after considering Mr. Bianchi's identified assets and various contingencies inherent in debt collection, fixed the damages at $50,000.

The court declined to include potential recovery from a tracing action against RBC, as that was not part of the initial negligence finding.

The plaintiffs sought default judgment against the defendants for outstanding amounts on a promissory note, equipment leases, and damages arising from an unjustified injunction.

The court granted default judgment for the promissory note and equipment lease payments, but denied claims for personal expenses and time spent due to lack of supporting evidence.

Damages were awarded after crediting the defendants for asset recovery.

JMCC Ltd., a cleaning subcontractor, sued general contractor Buttcon Limited for payment of services and extras on a construction project, registering a construction lien.

Buttcon counterclaimed for deficiencies and the cost of a bond to vacate the lien.

The court found JMCC was entitled to the adjusted fixed contract price for completed work and one verbally authorized extra for urgent overnight cleaning, but dismissed claims for other extras due to lack of written authorization and insufficient proof.

Buttcon's counterclaim for deficiencies was largely dismissed, as the issues were attributed to Buttcon's project mismanagement rather than JMCC's work quality.

Buttcon's claim for financing costs for vacating the lien was also dismissed, as it did not plead or prove damages under the Construction Lien Act.

The plaintiff, Trisan Construction, brought a motion for summary judgment against its former lawyer, Mark Epstein, for professional negligence and breach of contract in a construction lien collection matter.

The court found Epstein negligent in failing to properly identify the limitation period, delaying the issuance and service of the statement of claim, and delaying the notice of garnishment, but concluded these failures did not cause damages due to the client's insolvency.

However, the court found Epstein negligent for failing to advise Trisan about a potential breach of trust claim under s.13 of the Construction Lien Act against the directors and officers of Bianchi.

The court could not determine causation or quantify damages for this specific negligence without expert evidence and directed a trial of an issue on this point.

Following a successful summary judgment motion on liability under a promissory note, the court determined costs of the motion.

The moving parties sought full indemnity costs based on alleged misconduct by the opposing party.

The court found that both counsel had engaged in problematic conduct during the motion and that any misconduct was mutual.

Applying the principle that costs generally follow the event absent exceptional circumstances, the court awarded partial indemnity costs to the successful moving parties.

Costs were fixed at $6,000 inclusive of HST and disbursements.

The plaintiffs moved for summary judgment to enforce a promissory note executed in connection with an asset purchase agreement for a recycling business.

The defendant admitted signing the note and acknowledged the outstanding balance but argued that the plaintiffs had waived default, improperly seized collateral, and failed to account for the sale of secured assets.

The court held that no clear waiver or agreement to forbear from enforcing the note was established and that the defendant failed to produce evidence supporting allegations of improper seizure under the Personal Property Security Act.

However, due to ongoing litigation regarding the seizure and disposition of secured assets, the precise amount owing under the note remained uncertain.

Summary judgment on liability was granted, the defence was struck, and the quantum of the debt was ordered to be determined at trial together with the related injunction proceedings.