Hana Tariq

The moving party brought a motion under Rule 59.06(2)(a) to set aside a trial judgment, alleging the responding parties committed fraud by submitting false dump tickets for excavated soil.

The court dismissed the motion, finding no evidence of false representations, no evidence of loss, and no new material facts that could not have been discovered prior to trial.

The court awarded full indemnity costs to the responding parties, noting the moving party's unfounded allegations of fraud and the lack of merit to the motion.

The court considered costs following a trial in which the plaintiff, Domenic Gesualdi, succeeded in proving breach of contract and negligence against the defendants regarding the rebuilding of two vintage Ferrari engines.

The court fixed costs payable by the defendants to the plaintiff at $300,000 and to the third parties at $279,950.91, rejecting the defendants’ arguments for costs in their favour and their attempt to shift third party costs to the plaintiff.

The decision reviews the principles for fixing costs, including proportionality, reasonableness, and the impact of settlement offers.

The court found that the defendants breached their contract and were negligent in the restoration of the plaintiff's vintage Ferrari engines, resulting in significant damages.

The court dismissed the third party claim and awarded damages to the plaintiff for the cost of repairs, but denied claims for loss of capital value and other consequential damages.

The moving parties brought a motion for leave to appeal a lower court decision.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000 all inclusive.

The appellants appealed a trial judgment and costs decision resulting from four consolidated actions related to a construction project.

The appellants argued the trial judge erred by admitting hearsay evidence (trucking invoices and dump tickets) without requiring the truck drivers to testify, and by misapprehending evidence regarding soil quality and excavation.

The Divisional Court dismissed the appeal, finding the trial judge properly admitted the documents under the principled approach to hearsay through viva voce testimony, especially since the appellants had not objected at trial and had taken an 'all or nothing' approach by alleging fraud.

The court also found no palpable and overriding error in the trial judge's factual findings regarding the poor soil conditions and the necessity of trucking soil offsite.

The appeal regarding the apportionment of storage costs for a Ferrari given as compensation was also dismissed.

The plaintiffs, minority shareholders of two companies that owned marinas, sought leave to bring a derivative action against the companies' solicitor regarding the distribution of proceeds from the sale of the marinas.

The plaintiffs alleged the solicitor improperly distributed the funds to the majority shareholder or companies controlled by him.

The court dismissed the motion, finding that while the plaintiffs met the first three parts of the test for a derivative action, they failed to demonstrate that the proposed action was in the best interests of the companies, as there was no evidence the companies suffered a loss and the plaintiffs' true claim was personal.

The plaintiff in a construction lien action brought a motion to compel the defendant to serve an affidavit of documents and attend examinations for discovery before the plaintiff delivered responding materials to the defendant's motion for summary judgment.

The court granted leave to bring the motion but dismissed the request for an affidavit of documents.

The court held that under the amended Rules of Civil Procedure, there is no automatic right to an affidavit of documents without a discovery plan, and requiring one in the face of a summary judgment motion would be disproportionate and contrary to the modern approach to summary judgment.

Following a successful motion by the defendant to temporarily stay the action, the court determined the quantum of costs payable by the responding party, General Sprinklers Inc. The moving party sought partial indemnity costs of $11,127.66, while the responding party suggested $5,000.00.

The court found the moving party's requested fees excessive due to overlap with related motions and fixed costs at $7,500.00 on a partial indemnity basis.

The moving party, a joint venture contractor, brought motions to temporarily stay several construction lien and bond actions commenced by its subcontractors pending the outcome of an ongoing arbitration between the moving party and the project owners.

The court granted leave under the Construction Lien Act to bring the motions and ordered a temporary stay of the actions, finding it just to avoid a multiplicity of proceedings and inconsistent findings, particularly regarding the enforceability of a 'pay when paid' clause.

Ozz Electric Inc., a subcontractor, brought a motion to amend its Statement of Claim to advance various claims against the project owner, The Corporation of the City of Kitchener.

The proposed amendments included claims that the City was liable under a Labour and Material Payment Bond, liable in negligence for economic loss due to project delays, and liable for contribution and indemnity for alleged deficient workmanship.

The court dismissed all proposed amendments, finding no legal basis for the City's liability under the bond, that the negligence claim for economic loss was insufficiently pleaded, and that the claim for contribution and indemnity lacked a tenable legal basis.

The motion was dismissed without prejudice to Ozz Electric Inc. to bring a further motion to amend the negligence claim with proper pleading.