James Diamond

Following a trial in a construction lien matter, the court determined the issues of costs and the disposition of cash security posted to vacate the liens.

The court declined to award costs to either party due to divided success and the conduct of the parties, including the plaintiff's deliberate preservation of expired lien rights and exaggerated claims.

The court also dismissed the plaintiff's request to have the cash security paid into court as a 'specific fund' under Rule 45.02, finding no evidence that the balance of convenience favoured the order.

The cash security was ordered returned to the defendant MJR.

During a family law proceeding, a non-party corporation sought clarification regarding whether earlier disclosure and examination orders were stayed pending a forthcoming motion to set them aside.

The court considered whether it retained jurisdiction to grant or clarify a stay despite an appeal having been initiated, examining conflicting authorities interpreting Rule 63.02.

Adopting the view that the amended rule grants concurrent jurisdiction to both the trial court and the appeal court to grant a stay, the court held it retained jurisdiction.

Applying a balance of convenience analysis, the court found that requiring the non-party to comply with onerous disclosure obligations before the motion was determined would cause disproportionate prejudice.

The court ordered a stay of the prior orders until the motion to set them aside or change them is decided.

Ontario corporations sought to discharge notices of unsecured interests registered on title to their Toronto properties by an individual who was engaged in family law litigation in California against the corporations’ owner.

The respondent sought a stay of the application, arguing forum non conveniens and requesting that the Ontario court decline jurisdiction in favour of the California proceedings.

The court held that by filing a Notice of Appearance the respondent had attorned to the jurisdiction of the Ontario court, rendering forum non conveniens inapplicable.

The respondent had not obtained recognition or enforcement of any foreign order and the corporate applicants were not parties to the foreign litigation.

The court dismissed the motion to stay and granted the application discharging the notices from title.

The plaintiff brought a motion for summary judgment to enforce a joint and several continuing guarantee securing demand promissory notes.

The defendant argued the claim was statute‑barred under the Limitations Act, 2002 and that liability should be limited to half the indebtedness because there were two guarantors.

The court held that the limitation period for enforcing a continuing guarantee begins only after a clear and formal demand on the guarantor, which occurred in 2010, making the action timely.

The court further held that a joint and several guarantee permits recovery of the entire indebtedness from any guarantor.

Summary judgment was granted for the full amount of the debt with interest and costs.