Leona Ling-Yan Kung

The applicant sought relief in an appeal before the Court of Appeal for Ontario.

The court reviewed the record and applied the governing legal and procedural standards, including deference to factual and discretionary determinations where required.

The matter concluded with the following disposition: Appeal dismissed.

The decision concerns two motions to oppose the confirmation of a report of Associate Justice Robinson regarding construction lien and contract claims arising from a Toronto hospital project.

The court confirms the report, finding no error in the associate judge’s analysis of whether Kelson had a direct contract with Sjostrom, the effect of a change order on Amar’s scope of work, and the sufficiency of evidence for claimed damages.

The court upholds the associate judge’s findings that Kelson breached its contract with Amar but that Sjostrom failed to prove its damages, and dismisses both motions.

The moving parties brought a motion for leave to bring an application for judicial review of an adjudicator's decision dated February 28, 2024.

The Divisional Court dismissed the motion and awarded costs to the responding party fixed at $5,000 all-inclusive.

This decision addresses costs and pre-judgment interest following an eight-day trial involving two separate actions.

In the first action, Sjostrom Sheet Metal Ltd.'s lien and contract claims against Geo A. Kelson Company Limited were dismissed, leading to Kelson being awarded costs.

In the second action, A. Amar and Associates Ltd. successfully proved its contract claim against Kelson, resulting in Amar being awarded judgment and costs.

The court fixed Kelson's costs against Sjostrom at $123,270.92 and Amar's costs against Kelson at $173,025.17.

Pre-judgment interest for Amar was set from the date its statement of claim was issued, emphasizing that issues are framed by pleadings.

The decision applied principles of proportionality and offers to settle, awarding substantial indemnity costs from the date of relevant offers.

Two actions arose from a construction project where Kelson subcontracted Amar for sheet metal work, and Amar sub-subcontracted Sjostrom for labour.

Sjostrom walked off the job due to non-payment by Amar.

Kelson then directly engaged Sjostrom to complete the work and issued a change order reducing Amar's contract price.

Sjostrom claimed unpaid amounts from Kelson, while Amar claimed the unpaid balance of its subcontract.

The court found that Kelson and Sjostrom formed a direct oral contract, but Sjostrom failed to prove its claimed hours and its action was dismissed.

The court also found that the change order removed the remaining labour from Amar's scope of work, and Kelson breached its subcontract with Amar by non-payment.

Amar was awarded $209,737.88.

The defendant landlord brought a motion for partial summary judgment seeking a declaration that a commercial lease was terminated due to a change of ownership clause, an order for the tenant to vacate, and payment of double rent under an overholding clause.

The plaintiff tenant argued the change of ownership clause was unenforceable due to unconscionability, vagueness, or waiver, and that the termination notice was invalid.

The court granted the landlord's motion, finding the change of ownership clause valid and enforceable, rejecting the tenant's arguments regarding unconscionability, ambiguity, and waiver.

The court declared the lease terminated upon the property sale, ordered the tenant to vacate, and found the tenant liable for double rent as an overholding tenant.

The plaintiff, an unpaid trade supplier, brought a motion for default judgment against two defendants (ATD Contracting and Justin Rubatscher).

While the amount owed by ATD Contracting was adequately established, the court found insufficient evidence to grant judgment on the guarantee (due to the guarantee's effective date), interest calculations (conflicting rates and start dates), and trust remedies (lack of foundational evidence regarding funds received under the Construction Act).

The court declined to grant partial judgment, citing strong guidance from the Court of Appeal against it, and instead directed the matter to proceed by way of a viva voce hearing to address the evidentiary gaps and allow the case against all defendants, including a third defendant subject to bankruptcy proceedings, to be heard concurrently.

The appellant appealed a trial judge's order finding him personally liable for breach of trust under the Construction Lien Act.

The trial judge found that the appellant controlled the corporate contractor, that a bank draft constituted payment from the appellant as owner to the appellant as contractor, and that the payment was impressed with a trust under s. 8 of the Act.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's factual findings or application of ss. 8 and 13 of the Construction Lien Act.

The applicant sought a declaration that the respondent's hydro conduit and protective metal sleeve (U-guard) encroached upon her right of way and an order for their removal.

The parties owned neighbouring properties with a mutual driveway easement.

The applicant claimed the U-guard prevented her from using the right of way to park her vehicle.

The court found that the hydro conduit and U-guard were necessary fixtures and did not constitute an encroachment, as the measured width of the right of way remained sufficient.

Even if it were an encroachment, it did not cause substantial interference with the reasonable use of the right of way.

The application was dismissed with costs to the respondent.

The applicants brought a motion to oppose the confirmation of a Master's report regarding the amount owing under a boiler and machinery insurance policy issued by the respondent.

The applicants argued the Master erred in law by distinguishing between the valuation clauses in their property policies and the respondent's policy, and by accepting the respondent's valuation evidence which allegedly factored in depreciation improperly.

The Superior Court of Justice dismissed the motion, finding no error in the Master's conclusion that the respondent's policy required replacement with property of 'like kind, capacity, size and quality', which differed from the 'new for old' replacement cost coverage in the applicants' policies.

The moving parties (respondents in the main application) brought a motion to transfer an application from Brampton to Toronto.

The responding party opposed the motion and requested that a related application issued in Toronto be transferred to Brampton.

The court applied the factors under Rule 13.1.02 of the Rules of Civil Procedure and found that the related action and application were based on the same factual matrix and should be heard together to avoid duplicative proceedings.

The court dismissed the motion to transfer the Brampton application to Toronto and directed that a motion to transfer the Toronto application to Brampton be brought in the appropriate jurisdiction.