L. Klug

The plaintiff condominium corporation moved for summary judgment to recover a $196,620 advance payment made to the defendant contractor after terminating a hallway upgrade contract.

The court dismissed the motion, finding genuine issues for trial regarding the nature of the payment (whether a deposit, advance, or liquidated damages), the juristic reason for the defendant to keep it, and the identity of the proper corporate defendant.

The court concluded that a full appreciation of the evidence could not be achieved on the written record alone.

The plaintiff subcontractor claimed payment for extras on a watermain project, while the defendant general contractor counterclaimed for backcharges.

The court applied the Goldsmith test to determine whether the claimed extras were within the scope of the subcontract.

The court dismissed the claims for remobilization, flood damage, sludge removal, and re-inspection, finding them either unproven or within the contract's scope.

However, the court awarded the subcontractor $39,179.71 for additional hand lining required due to an unforeseen change in the tunnel's slope.

The general contractor's counterclaim for backcharges was dismissed for lack of proof.

During a commercial trial involving allegations of fraud and conspiracy related to the declaration of a corporate dividend, the court ruled on an objection to expert testimony.

Defence counsel argued the plaintiff’s expert sought to give opinions not contained in previously served expert reports contrary to Rule 53.03 of the Rules of Civil Procedure.

The court held that an expert may explain or amplify matters latent in a report and allowed testimony on whether the dividend complied with statutory requirements under the Business Corporations Act, finding the issue sufficiently addressed in the reports.

However, the court prohibited testimony regarding what due diligence the accountant should have undertaken, as that issue was not contained in the expert reports or pleaded in the claim and would cause prejudice to the defence.