Gerard Barosan

This is a costs endorsement following the plaintiff's successful opposition to the defendants' motion to set aside a Certificate of Pending Litigation (CPL).

The court addressed costs for two attendances: an adjournment on February 28, 2017, and the substantive motion hearing on March 10, 2017.

For the February 28th attendance, the court declined to award costs due to conflicting submissions and insufficient information regarding the two-hour adjournment process.

For the March 10th motion, where the plaintiff successfully preserved its CPL, the court applied the general rule that costs follow the event.

The plaintiff was awarded partial indemnity costs totaling $7,116.10, inclusive of fees and disbursements, payable forthwith by the defendants, jointly and severally.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) registered against their properties, which were subject to an Agreement of Purchase and Sale (APS) with the plaintiff.

The dispute centered on conflicting closing date clauses in the APS and a subsequent amendment, leading to a triable issue regarding the agreement's validity.

The court applied the "Dhunna factors" to assess the equities, finding the properties unique and the plaintiff's primary claim for specific performance valid.

The motion to discharge the CPL was dismissed, as the defendants failed to meet the burden of proof.

The moving defendants sought an order striking portions of the statement of claim under Rules 21 and 25 of the Rules of Civil Procedure.

The plaintiff alleged former employees and related entities misappropriated architectural drawings and used them to obtain contracts.

The court held that breach of contract claims against certain corporate and individual defendants must be struck because no contractual relationship existed.

Claims for breach of confidence against two corporate defendants controlled by a former employee were allowed to proceed, but claims against another individual and his business were deficient and required amendment or would be struck.

Paragraphs referring to findings of the Ontario Association of Architects Complaints Committee were struck as prejudicial and inadmissible.

Following a motion converted from summary judgment to a Rule 21 motion, the defendant sought costs after successfully striking the plaintiff's claims for breach of contract, negligence, and negligent misrepresentation, while leave was granted to replead fraudulent misrepresentation.

The court held the defendant was substantially, but not totally, successful.

In the circumstances, including the procedural conversion of the motion and the possibility that the plaintiff might still succeed on the surviving claim, the court awarded the defendant its partial indemnity costs as claimed.

The court ordered $6,000 payable forthwith, with the balance payable in the cause.

A commercial tenant alleged that it was induced to enter into a lease by fraudulent misrepresentations about the condition of the landlord’s plumbing system and later suffered business losses after repeated sewer back‑ups.

The landlord moved under Rule 21 to strike the amended statement of claim based on contractual provisions including a covenant requiring the tenant to insure against losses such as flooding and sewer backup, and a release executed after the first incident.

The court held that the covenant to insure barred the tenant’s claims for breach of contract, negligence, and negligent misrepresentation because the tenant had assumed the risk of those losses through insurance.

However, it was not plain and obvious that the covenant or the release barred a claim for fraudulent misrepresentation inducing the lease, particularly given allegations of economic duress surrounding the release.

The tenant was granted leave to amend its pleading to advance only the fraudulent misrepresentation claim.

The plaintiffs brought motions for an interlocutory injunction and for production of documents against the defendants, who were former employees and a competing insurance brokerage.

The injunction motion was settled and the production motion was stayed.

The plaintiffs sought substantial indemnity costs of over $390,000, arguing the defendants unnecessarily lengthened the proceedings and engaged in wrongdoing.

The court found the injunction component of the action was effectively spent, justifying fixing costs payable forthwith rather than in the cause.

The court awarded partial indemnity costs of $255,237, apportioned equally among the three responding defendants, after making deductions for services not directly related to the motions.

Following a reference under the Construction Lien Act regarding emergency flood remediation services, the court addressed outstanding issues of costs and interest.

The plaintiff had claimed a construction lien and additional storage charges, but the lien was found to be out of time and most of the monetary claims failed, with only a small portion of the services claim succeeding.

Applying s. 86 of the Construction Lien Act and proportionality principles, the court held that costs could not exceed what would have been incurred had the matter proceeded in Small Claims Court.

The court therefore capped costs at the Small Claims Court maximum and disallowed many claimed disbursements.

The claim for contractual pre‑judgment interest was rejected, and only post‑judgment interest at the court rate was awarded.

The plaintiff contractor sought payment for flood remediation services and storage charges and asserted a construction lien against the defendant homeowner’s property.

The court held the lien was not preserved within the statutory time limits under the Construction Lien Act and therefore failed.

Because the parties had not agreed to rates for labour, equipment, or other services, the plaintiff could only recover the fair market value of services on a quantum meruit basis.

The court rejected many claimed charges due to lack of proof of fair value or deficient work by subcontractors, and also dismissed the claim for storage charges where storage had originally been agreed to without cost and later unilaterally altered by the plaintiff.

Judgment was granted only for limited plumbing and labour charges totaling $12,797.80, while the defendant’s counterclaim was dismissed for lack of evidence.