Duncan W. Glaholt

Following the dismissal of the plaintiff's action for delay, the defendants sought costs on a substantial indemnity basis.

The plaintiff argued the defendants should not receive costs due to their delay in bringing the motion to dismiss.

The court held the defendants were entitled to costs, but only on a partial indemnity basis, as the plaintiff's conduct was not reprehensible, scandalous, or outrageous.

Given the lengthy delay and the fact that the judges who dealt with the merits had retired, the court found exceptional circumstances warranted referring the costs for assessment rather than fixing them.

The defendants brought a motion to dismiss the plaintiff's action for delay under Rule 24 of the Rules of Civil Procedure.

The action, which alleged negligent engineering in the construction of a cogeneration station, had been dormant for several years following a successful appeal by the plaintiff in 2009.

The court found the delay to be inordinate, inexcusable, and prejudicial to the defendants, as several potential witnesses were no longer available.

The court dismissed the action for delay and confirmed its authority to award costs, directing the parties to provide further submissions on the costs issue.

The appellant withdrew its appeal from the order of the Divisional Court.

The Court of Appeal ordered the appeal withdrawn with prejudice and without costs.

The applicant sought judicial review to quash a municipality's decision awarding a construction contract to a third party, alleging breaches of procedural fairness and natural justice.

The Divisional Court dismissed the application, finding that the requested remedy of certiorari or mandamus was discretionary and inappropriate because the third party had already commenced work.

The court concluded that damages would be an adequate and preferable remedy for the applicant.

Following an appeal, the Court of Appeal issued a supplementary costs endorsement regarding the costs of the underlying summary judgment motion.

The Court directed that the costs of the motion be fixed by the motion judge in light of the appeal's result, unfettered by the terms of the original judgment.

The appellant appealed a summary judgment dismissing its action against the respondents for damages related to cracked heat recovery steam generators at a power plant.

The motion judge had ruled the claims were barred by the 12-month limitation period under the Professional Engineers Act.

The Court of Appeal upheld the dismissal of claims based on engineering design deficiencies but allowed the appeal regarding the proposed amended claims for breach of a product durability warranty, finding a genuine issue for trial as to whether those claims fell outside the scope of professional engineering services and were subject to a six-year limitation period.

The appellants perfected a construction lien, and the respondent moved to discharge it on the basis that the work was not lienable.

The motion was dismissed, and the respondent appealed to the Divisional Court.

While the decision was under reserve, the two-year period to set the action down for trial under s. 37 of the Construction Lien Act expired.

The respondent successfully moved to have the lien declared expired, which was upheld by the Divisional Court.

The Court of Appeal dismissed the appellants' appeal, holding that the time limits in ss. 37 and 46 are mandatory and are not suspended by a reserved judgment.

The appellants appealed an order vacating their construction lien and dismissing their action for failing to set the matter down for trial within the two-year limitation period under section 37(1) of the Construction Lien Act.

The appellants argued it was impossible to set the action down because the fundamental issue of whether the work was lienable was under reserve by the Divisional Court at the time the limitation period expired.

The Divisional Court dismissed the appeal, finding that there was no practical or legal impossibility preventing the appellants from complying with the strict statutory requirements.

The appellants appealed an order vacating their construction lien and dismissing their lien action for failing to set the action down for trial within the two-year statutory limitation period under the Construction Lien Act.

The appellants argued it was impossible to set the action down because the fundamental issue of whether the work was lienable was under reserve by the Divisional Court at the time the limitation period expired.

The Divisional Court dismissed the appeal, finding that there was no practical or legal impossibility preventing the appellants from complying with the strict statutory requirements to set the action down for trial.

On an appeal from summary judgment in a construction trust case, the court held that rents received by a commercial landlord after certification of substantial performance were trust funds under s. 7(3) of the Construction Lien Act until the unpaid contractor was paid.

The court rejected the argument that rent used for operating expenses, taxes, utilities, and mortgage payments fell outside the statutory trust or that only profits were captured.

The sole officer, director, controlling mind, and signing officer was personally liable under s. 13 because he at least reasonably ought to have known of the breach.

Relief under s. 35 of the Trustee Act was unavailable, although the prejudgment interest rate against the individual appellant was varied from the contractual rate to the rate under the Courts of Justice Act.