Ronald S. Petersen

The moving party sought leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal.

Costs of $5,000 were awarded to the respondent, payable within 30 days.

The garnishee brought a motion to reinstate its appeal of an associate judge's order, which had been struck by the registrar for failure to file a motion confirmation form.

The creditor brought a cross-motion to strike the garnishee's affidavit and for judgment.

The court found that the Rules of Civil Procedure do not clearly require a motion confirmation form for an appeal of an interlocutory order of an associate judge, and the creditor should have consented to the reinstatement.

The court granted the motion to reinstate the appeal and dismissed the creditor's motion.

Following the dismissal of the applicant's request for leave to assess a solicitor's account, the successful respondent sought partial indemnity costs of $7,738.41.

The applicant argued for a lower amount based on proportionality and its own costs outline of $1,899.81.

The court found the applicant's outline did not reflect what a losing party could expect to pay given the extensive record and serious allegations raised.

The court awarded the respondent costs in the all-inclusive amount of $5,000.

The applicant subtenant sought leave under the Solicitors Act to assess a legal account rendered by the respondent law firm to the landlord.

The applicant had agreed to pay the landlord's legal fees as part of a settlement to transfer the lease after defaulting on rent during the COVID-19 pandemic.

The court dismissed the application, finding no special circumstances to justify an assessment, as the account was not exorbitant and the parties had reached a binding settlement agreement that required full payment of the legal fees.

The moving party landlord brought a motion to quash the tenants' appeal of a Landlord and Tenant Board decision that lifted a stay on an eviction order.

The tenants had previously consented to an order to pay arrears but breached it shortly after.

The tenants requested an adjournment to obtain legal advice, which the court denied.

The court found the appeal devoid of merit, as it did not raise a question of law and a successful appeal would not change the outcome given the unappealed consent order.

The motion to quash the appeal was granted.

Two non-parties sought costs following a summary judgment motion brought by the defendant seeking dismissal of part of the plaintiff’s claim relating to subcontractors.

The defendant had initially served the non-parties but abandoned the motion as against them shortly before the hearing.

The non-parties argued they incurred preparation costs due to the defendant’s tactical decision to include them.

The court held that it was not inappropriate for the defendant to join the non-parties at the time and noted that the non-parties did not file responding materials or participate in the motion.

In the circumstances, the court declined to award costs against the defendant.

The defendant Crown brought a motion for partial summary judgment seeking dismissal of claims advanced by a general contractor on behalf of subcontractors arising from delays in a federal construction project.

The Crown argued that the subcontractors lacked privity of contract with the owner, that the contractor had not itself suffered damages, and that the claims were barred by limitation periods and lack of contractual notice.

The court held that the contractual scheme contemplated subcontracting and permitted the contractor to pursue delay damages that included sums payable to subcontractors where liability rested with the owner.

The absence of direct contractual privity between subcontractors and the owner was not a bar where the contractor’s contract allowed recovery of such costs and the subcontract conditioned payment on recovery from the owner.

The court concluded that the subcontractor claims raised a reasonable cause of action and that genuine issues required a trial.

A preliminary issue arose on a summary judgment motion regarding whether a party could reference the opinion and recommendations of an evaluator retained by the parties during a dispute resolution process connected to a construction project.

The moving party argued that the communications were protected by mediation confidentiality under the Rules of Civil Procedure.

The court held that regardless of the label applied to the process, the communications formed part of settlement discussions intended to resolve a litigious dispute and were therefore subject to settlement privilege.

The evaluator’s reports and recommendations, and any related documentation, were found to be privileged and inadmissible.

Portions of an affidavit referencing those materials were ordered struck.

The plaintiff brought a motion to compel the defendants to answer undertakings given during examinations for discovery in a home renovation dispute.

The defendants provided most answers shortly before the hearing but argued the motion was unnecessary, precipitous, and contrary to principles of civility, particularly given the absence of a formal discovery plan.

The Master reviewed the procedural history and correspondence between counsel, finding that the plaintiff had acted reasonably and provided ample notice.

The Master ordered the defendants to provide the remaining answers and better responses to certain undertakings, and awarded the plaintiff partial indemnity costs of the motion.

On an appeal from the dismissal of a rule 21.01(3) motion, the court considered whether a corporation incorporated after the vendor's repudiation of a real estate agreement could adopt a pre-incorporation contract under s. 21 of the Business Corporations Act and sue for damages.

The court held that s. 21 replaces the common law and must be interpreted as a self-contained statutory scheme.

A contract falling within s. 21(4) remains a nascent statutory contract before adoption, and after incorporation the corporation's adoption operates retroactively to the date of the agreement.

Accepted repudiation terminated only future performance, not accrued obligations, so there remained a contract capable of adoption.

The corporation adopted the contract by commencing the action and therefore had status to enforce it.