Adam Joseph Ezer

The defendants brought a motion under section 47 of the Construction Act to discharge the plaintiff's construction lien, vacate the certificate of action, and dismiss the action.

The motion was based on four grounds: the oral contract was prohibited by the Statute of Frauds, lack of corroboration under the Evidence Act section 13, lack of certainty in the contract's essential elements, and no claim for unjust enrichment.

The court dismissed the motion, ruling that the Construction Act is a complete code for construction liens, allowing for oral contracts as an exception to the Statute of Frauds.

It also found that the Evidence Act section 13 did not apply as the action was not against the deceased's estate, the oral contract had sufficient certainty, and the unjust enrichment claim was an alternative remedy not subject to a section 47 motion.

Costs were awarded to the plaintiff.

This decision addresses a costs award following cross-motions for summary judgment in a commercial lease dispute.

The court had largely ruled in favour of the tenant, dismissing the landlord's action and granting the tenant's cross-motion on liability.

The tenant sought $78,060 in costs under simplified procedure (Rule 76).

The court found this request neither reasonable nor proportionate, given the landlord's dismissed claim was $66,496 and the tenant's damages claim was still proceeding to trial.

Adopting the landlord's suggestion, the court fixed costs at $45,000 all-inclusive, payable by the landlord to the tenant, emphasizing the principle that costs must be reasonable and proportionate to the amount recovered in simplified procedure.

The plaintiffs brought a motion seeking a non-party production order in an action where the statement of claim had not yet been issued and served.

The documents were sought primarily to support a motion in the Court of Appeal for leave to introduce fresh evidence in a separate appeal.

The court held that Rules 30.10 and 31.10 of the Rules of Civil Procedure permit non-party production only where necessary to fairly proceed to trial.

Because the action was not yet ready for trial and the plaintiffs’ purpose was to obtain evidence for an appellate motion rather than the trial itself, the request constituted an abuse of process.

The court further held that it lacked jurisdiction to grant such relief and that any request for evidence to support a fresh evidence motion should be made to the Court of Appeal.