Lianne J. Armstrong

The moving party, a general contractor, brought an ex parte motion to vacate two construction liens registered against a property, without prejudice to its lien rights, to facilitate the property owner's refinancing.

The court dismissed the motion, finding that preserving the moving party's lien rights while vacating the liens from title could prejudice the refinancing bank and other third parties who would have no notice of the preserved rights.

The court suggested that targeted relief on notice to the affected bank would be more appropriate.

The plaintiff, Magil Construction Canada Inc., brought motions seeking to vary a previous order, amend a third-party claim due to corporate amalgamation, and join several proposed third parties under the Construction Act.

The court dismissed the motion to vary the previous order, finding it unnecessary and that the plaintiff failed to meet the requirements of Rule 59.06.

However, leave was granted to amend the third-party claim to reflect the amalgamation and to join Mattina Mechanical Limited, Sola Engineering Inc., and Innocon Inc. as third parties.

The joinder of IFAB Engineering Partners Ltd. was resolved by consent.

The court rejected Innocon's arguments that the third-party claim was a nullity and that the claim against it was statute-barred, finding no undue prejudice or delay would result from the joinder.

The plaintiff, ZD Metal Products Inc., brought a motion for summary judgment against the defendant, Metamag Inc., concerning alleged breaches of contract for the manufacture of two industrial ovens.

The plaintiff sought approximately $400,000 USD for a defective aluminum furnace and an undelivered magnesium furnace.

The defendant argued that the aluminum furnace's failure was due to the plaintiff's improper maintenance and operation, and that the magnesium furnace contract was not fully complied with by the plaintiff, including payment and inspection.

The court found a multitude of genuine issues of fact requiring a trial, including whether the aluminum furnace was defective upon delivery, if the defendant failed to repair it, if the plaintiff caused the damage, and issues related to the magnesium furnace contract's terms and plaintiff's compliance.

Consequently, the plaintiff's motion for summary judgment was dismissed with costs.

The plaintiff moved to extend the timetable for procedural steps in an action alleging historic sexual assault while in foster care.

The defendant Children's Aid Society cross-moved to dismiss the action for delay.

The court found that while the plaintiff's counsel initially caused delay by unilaterally cancelling discoveries, the defendant subsequently engaged in 'scorched earth' tactics that actively obstructed the litigation's progress.

Applying the Reid criteria, the court granted the extension, dismissed the cross-motion, and ordered the action into case management.

The defendants brought a motion to set aside an ex parte order granting a Certificate of Pending Litigation (CPL) against their current residence and to discharge the CPL.

The plaintiff contractor had performed work on the defendants' cottage but failed to perfect a lien under the Construction Lien Act.

After the defendants sold the cottage and used the proceeds to buy a new home, the plaintiff obtained a CPL on the new home, claiming an equitable interest.

The court discharged the CPL, finding that the plaintiff failed to make full and fair disclosure on the ex parte motion, did not have a reasonable claim to an interest in the land, and was improperly attempting to revive expired lien rights, which would subvert the Construction Lien Act.

The defendants moved to enforce a settlement agreement, arguing that a binding agreement had been reached on January 16, 2018, for $120,000, inclusive of interest and legal fees, payable in monthly installments.

The plaintiff, Worldwide Security Ltd., opposed, attempting to add a term for 5% annual interest on the declining balance.

The court found that a binding agreement was reached prior to the plaintiff's proposed amendment, with no further terms to be negotiated.

The defendants' motion to enforce the settlement was granted, and the plaintiff's summary judgment motion and claims against two individual defendants were dismissed.

Costs were awarded to the defendants.

The plaintiff brought a motion to substitute the name of an individual defendant, claiming misnomer, and to amend its statement of claim to add new causes of action.

The individual defendant brought a cross-motion for summary judgment dismissing the action against him personally.

The court dismissed the plaintiff's motion, finding that the intended defendant could not have reasonably known he was the target of the litigation, and that the proposed amendments were statute-barred.

The court granted the defendant's summary judgment motion, finding no evidence to pierce the corporate veil or establish personal liability.

A senior employee with 38 years of service was reassigned from Vice President of Operations to Purchasing Manager following an internal restructuring.

The employee refused the demotion and alleged constructive dismissal.

The court held that the unilateral reassignment involved a significant loss of status, authority, and prestige, amounting to a fundamental breach of the employment contract despite the preservation of salary.

Applying the Bardal factors, the court awarded 24 months’ reasonable notice and found the employee reasonably declined to mitigate by returning to a humiliating subordinate role.

Claims for moral damages were dismissed because the employer’s conduct was not in bad faith.

Following litigation concerning the affairs of an incapable person, the court determined costs between family members and the Office of the Public Guardian and Trustee.

One party sought substantial full indemnity costs from the incapable person's estate and additional amounts from another family member.

The court emphasized proportionality in estate litigation involving incapable persons and rejected the expectation that legal costs will routinely be borne by the incapable person's estate.

While finding misconduct and escalation of litigation by multiple parties, the court held that the primary responsibility for prolonging the litigation rested with one party.

The court ordered that each party bear their own costs except that one party pay $10,000 toward another party’s costs, and that the cost of a capacity assessment be reimbursed from the incapable person's estate.