Bernie McGarva

The defendants in two construction lien actions, Pier 27 and L Tower, brought motions seeking orders for the plaintiff, Yuanda Canada Enterprises Ltd., to post security for costs totaling over $1 million.

The court dismissed both motions, finding that the defendants failed to establish "good reason to believe" that the plaintiff had insufficient assets in Ontario to pay costs.

The court emphasized the high threshold for such motions, requiring indicia of insolvency or instability, and noted that the certified basic holdback owed to the plaintiff by the Pier 27 Defendants, exceeding the claimed security for costs, constituted a sufficient asset.

This was a costs endorsement following motions arising from a dispute over the sale of a joint venture and a related arbitration.

The plaintiff had sought summary judgment for more than $30 million, while the defendants brought a Rule 21 motion alleging res judicata and abuse of process and alternatively seeking a stay in favour of arbitration.

After the court rejected the res judicata and abuse of process arguments but granted a stay pending arbitration, both sides sought costs.

Applying the Rule 57.01 factors and considering the divided success, the complexity of the proceedings, and the unreasonably high amount claimed, the court made no order as to costs.

Following the sale and dissolution of a mass spectrometry joint venture, the plaintiff sued for approximately half of alleged profits arising from deferred service contracts transferred to a third party.

The defendants argued the claim was barred by the prior arbitration concerning a separate inventory issue, or alternatively had to proceed to arbitration under a dispute resolution agreement governed by foreign law.

The court held that neither issue estoppel nor cause of action estoppel applied because the deferred service contract issue was expressly kept out of the earlier arbitration.

Applying the competence-competence principle, and in light of conflicting expert evidence on U.S. and New York law, the court found it was at least arguable that the dispute fell within the arbitration clause and stayed the action pending arbitration.

The appellant developer sued the respondent architect for negligence and breach of contract, alleging that the upper deck of a parking garage was inadequately designed, resulting in water ponding.

The trial judge dismissed the action, finding that the ponding was caused by construction defects rather than the architect's design.

On appeal, the appellant argued the trial judge erred in his appreciation of the expert evidence and in finding the designed slope was reasonable.

The Court of Appeal dismissed the appeal, holding that while the trial judge mistakenly stated there was no expert evidence challenging the design, this error was immaterial because the trial judge's liability findings were driven by construction errors for which the architect was not responsible.

The appellant appealed a summary judgment requiring it to pay $135.5 million in cash to fulfill its obligations under a letter agreement.

The appellant argued the motion judge erred by restricting payment to cash rather than allowing payment in shares of certain corporations as provided in the agreement.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the respondent was entitled to reject the offered shares as not being of equivalent value, and finding that allowing payment in shares years after the deadline would inappropriately rewrite the agreement.

The University Health Network (UHN) was formed through the amalgamation of several hospitals, each of which previously held an express statutory exemption from retail sales tax.

The amalgamation statutes repealed the individual hospital acts, including their tax exemptions, but contained 'continuation of rights' clauses.

UHN sought a declaration that these clauses preserved its tax-exempt status.

The Court of Appeal held that even if a tax exemption is a 'right' under the continuation clauses, it did not survive the repeal of the specific statutes granting the exemptions.

The court applied principles of statutory interpretation, including implied exclusion, to conclude that the Legislature did not intend to continue the tax exemptions for UHN.

The appellant appealed an order made under the Canada Business Corporations Act to the Divisional Court.

The court held that under s. 249 of the Act, an appeal lies to the Court of Appeal for Ontario, not the Divisional Court.

The appeal was dismissed on jurisdictional grounds.

The union alleged the employer violated the Labour Relations Act by refusing to implement a first collective agreement awarded by a board of arbitration.

The employer argued the agreement was a nullity due to the Inflation Restraint Act.

The Board held that while the compensation plan within the agreement was of no effect under the Inflation Restraint Act, the remainder of the collective agreement remained valid and binding.

The Board directed the employer to implement the non-compensation provisions of the agreement.