Neil S. Abbott

The appellant filed a notice of appeal seeking to set aside a decision of the Superior Court of Justice.

The lower court had issued five separate judgments in five different actions that were heard together but not consolidated.

The notice of appeal did not reflect the style of any of the five judgments, and no appeal from any individual judgment fell within the monetary jurisdiction of the Court of Appeal.

The court found it lacked jurisdiction to consolidate matters resulting in five separate judgments and transferred the matter to the Divisional Court, which possessed the appropriate monetary jurisdiction.

The plaintiff, Deborah Fisher, brought a summary trial action against Group Five Inc. and Thom Hirtz for wrongful dismissal.

The primary issue was whether Fisher was an employee, dependent contractor, or independent contractor.

The court found Fisher to be an independent contractor, dismissing her claim for wrongful dismissal damages but granting her an uncontested claim for unpaid work.

The court also provided a hypothetical assessment of notice period and mitigation had she been found an employee or dependent contractor.

The applicants brought a contempt motion alleging the respondent failed to comply with a Licence Appeal Tribunal order requiring investigation and repair of water penetration in two townhouses.

Applying the civil contempt test and the criminal standard of proof, the court held that although the order was clear, the evidence did not establish deliberate and wilful disobedience beyond a reasonable doubt.

The respondent had retained engineering assistance, conducted multiple inspections and tests including a blower door test, performed repairs, and proposed further waterproofing investigations.

The contempt motion was dismissed, but the court made additional supervisory orders to facilitate further investigation and repairs in order to give effect to the Tribunal order.

The defendants brought a motion for summary judgment seeking dismissal of a claim by a warranty administrator to recover amounts paid from a statutory guarantee fund for condominium common element defects.

The motion raised issues of statutory interpretation under the Ontario New Home Warranties Plan Act concerning whether a condominium corporation is entitled to enforce warranty rights relating to common elements.

The court held that the statute deems a condominium corporation to be the owner of common elements for warranty purposes and therefore entitled to enforce such warranties.

Alternatively, the warranty administrator was entitled to pursue recovery through statutory subrogation after paying claims from the guarantee fund.

The defendants’ motion was dismissed and the indemnitor was declared personally liable for any deficiency once the amount is quantified.

A priority dispute arose between a building mortgagee and construction lien claimants over funds paid into court to vacate liens.

The plaintiff lien claimant argued the priority extended to the full amount owed by the owner to the general contractor.

The mortgagee argued priority was limited to the 10 percent statutory holdback.

The court held that paying money into court to vacate a lien does not alter the priority scheme under the Construction Lien Act, and the lien claimants' priority over the mortgagee was limited to the statutory holdback amount.