Kristin Ernest Hutton

The plaintiff, Penalta Group Ltd., brought a motion to extend deadlines for serving expert reports and setting the action down for trial, following a previous order that set aside an administrative dismissal for delay.

The defendant American Buildings Company opposed the motion, arguing for automatic reinstatement of the dismissal.

The court granted the extension for setting the action down for trial to November 3, 2022, and partially granted the extension for expert reports, specifically for Mr. Hartog's report to July 30, 2022.

However, a further extension for an additional expert report was denied due to insufficient evidence that an expert had been retained or how long it would take.

The court also granted leave for the plaintiff to continue the motion after serving the trial record.

The Appellants (Niagara Radio Group Inc., Northguard Capital Corp., and Andrew Ferri) brought a motion for an extension of time to perfect a consolidated appeal.

They initially sought to set aside or vary a previous order, but acknowledged that a single judge of the Court of Appeal lacked jurisdiction to do so.

The delay in perfecting the appeal was attributed to difficulties in issuing and entering court orders.

The Respondents (Hydro One Networks Inc. and Scargall Owen-King LLP) did not oppose the motion.

The motion was granted, extending the deadline for perfecting the appeal.

The Court of Appeal previously dismissed the moving party's motions for leave to appeal and permitted the responding party to make written submissions for full indemnity costs.

The responding party failed to file its costs submissions by the extended deadline and was deemed to have abandoned its request for full indemnity costs.

The court ordered partial indemnity costs of the four motions for leave to appeal to the responding party, fixed at $1,500 inclusive.

The Divisional Court issued an endorsement on costs following multiple appeals under the Construction Lien Act.

Noting that the case was litigated without regard for proportionality, the court recognized that the respondent on appeal had no choice but to engage with its meritorious but modest claim.

Costs of all appeals were fixed in the aggregate at $65,000 inclusive, payable to the respondent on appeal from the appellant and recoverable from the lien security.

The appellant sought to appeal a costs order made under the Construction Lien Act independent of the merits of the judgment.

The court held that pursuant to section 67(3) of the Construction Lien Act, the requirement to obtain leave to appeal costs under section 133(b) of the Courts of Justice Act applies.

As the appellant did not seek or obtain leave, the appeal was quashed.

The appellant mortgagee appealed multiple orders, including a finding of contempt for attempting to sell a property under a power of sale in violation of a court order, and a finding that the respondent's construction lien had priority over its mortgage.

The Divisional Court dismissed all appeals.

The court held that the appellant was bound by its formal admission of contempt made during sentencing, and the Apology Act did not apply to admissions made under oath or by counsel in court.

Furthermore, the court upheld the finding that the construction lien had priority because the appellant failed to prove any funds were actually advanced under its mortgage.

The plaintiff sought costs following a successful motion to determine priority between creditors after a judicial sale.

The plaintiff had made an offer to settle for $25,000, which was beaten at the hearing.

The court found the responding party's conduct to be particularly egregious, noting a combination of deceit, frivolous arguments, and repetitive proceedings designed to make collecting a simple debt as expensive as possible.

Consequently, the court awarded the plaintiff full indemnity costs fixed at $150,000.

The plaintiff sought substantial indemnity costs of $15,172.25 following its success on a motion brought by the moving party to stay a finding of contempt.

The moving party argued costs should be reduced because the plaintiff was unsuccessful on its oral motion for a finding of contempt against an individual personally.

The court declined to award substantial indemnity costs due to the failed oral motion, but awarded the plaintiff partial indemnity costs fixed at $11,000.

This motion endorsement addresses two motions: one by 1746878 Ontario Inc. to stay a finding of contempt against it, and an oral cross-motion by Pollard Windows Inc. alleging continued contempt by Andrew Ferri.

The court applied the RJR-MacDonald test for a stay, finding no serious issue to be tried as 1746878 Ontario Inc. had previously admitted contempt.

The court also found no irreparable harm.

Consequently, the motion to stay the contempt finding was dismissed.

The court further dismissed Pollard Windows Inc.'s oral motion, clarifying that the prior order against Andrew Ferri precluded him from participating in proceedings but not from acting as a director of 1746878 Ontario Inc.

This motion determined priority between creditors following a judicial sale of a residential property.

Pollard Windows Inc., a construction lien claimant, sought priority over 1746878 Ontario Inc., an assignee of a mortgage.

The court found that the mortgage held by 1746878 Ontario Inc. was a fraudulent conveyance, part of a scheme by the controlling individual (Andrew Ferri) and related entities to defeat creditors.

The court rejected 1746878 Ontario Inc.'s claims of priority, finding that the alleged notice of sale was invalid, it failed to prove any actual advances under the mortgage, and the transaction bore numerous badges of fraud.

Pollard Windows Inc. was granted priority for its judgment and costs.

The plaintiff sought costs of approximately $3,000 for a motion heard on January 13, 2017, where the court granted possession of the subject property and enjoined a sale under power of sale.

The mortgagee, 1746878 Ontario Inc., argued it should not be liable for costs as it took no part in that motion.

The court agreed, noting that 1746878 Ontario Inc. did not appear until a later date, and declined to order costs against it for the January 13 motion.

Following a successful motion to cite the responding corporation for contempt of court, the plaintiff sought full indemnity costs.

The court awarded costs of $9,171.05 on a full indemnity scale against the corporation due to its reprehensible actions in deliberately contravening court orders.

The court declined to order costs against an individual who was not involved in the motion.

The defendants brought a Rule 21 motion to determine questions of law regarding applicable limitation periods and proper parties in an action for damages arising from a municipal drain.

The court held that the limitation period in s. 111 of the Drainage Act applies only to proceedings before a referee, not the Superior Court, meaning s. 45 of the former Limitations Act applied to the plaintiffs' claims.

The court also found that the one-year limitation period under s. 46 of the Professional Engineers Act applied to the claims against the engineering defendants.

Finally, the court determined that under s. 79 of the Drainage Act, the municipality is strictly liable for damages caused by the condition of drainage works, precluding claims against the other defendants.

On a summary judgment motion in long-running drainage litigation, the moving defendants sought dismissal on limitation grounds and substantial indemnity costs.

The responding plaintiffs opposed and sought related procedural relief, including amendment of pleadings to particularize nuisance and to plead discoverability and fraudulent concealment.

The court held that the record disclosed multiple genuine issues requiring a trial, including disputed facts regarding design, construction, disclosure obligations, and the interaction of potentially applicable statutory limitation regimes.

Summary judgment was dismissed, leave to further amend the amended statement of claim was granted, and the matter was directed to proceed expeditiously toward trial.