Lori Marzinotto

The defendants sought leave to amend their statement of defence and add a counterclaim for $800,000 for damages due to delay and deficiencies in a construction project.

The plaintiff opposed, arguing the counterclaim was statute-barred.

The court denied leave to add the counterclaim, finding it was outside the two-year limitation period under the Limitations Act, 2002, and no evidence refuted the statutory presumption of discoverability.

However, the court permitted amendments to the defence to assert the claims as an equitable set-off, noting that limitation periods do not apply to set-off claims as they are regarded as equitable defences under the Courts of Justice Act.

Costs were reserved to the trial judge.

The plaintiff creditor sought a declaration that a mortgage registered in favour of a third party constituted a fraudulent conveyance under s. 2 of the Fraudulent Conveyances Act.

The mortgage had been granted after the plaintiff had commenced legal proceedings and purportedly secured an alleged pre‑existing debt.

The court found the underlying debt was statute‑barred under the applicable limitation periods and therefore did not constitute valid consideration for the promissory note or mortgage.

The surrounding circumstances, including the timing of the security and the relationship between the parties, constituted badges of fraud.

The mortgage was declared void as against the plaintiff.

A contractor sought payment for remedial road repairs following settlement of municipal sewer trench backfill completed under contract with a municipality.

The contractor alleged the work was extra to the contract and alternatively claimed compensation on a quantum meruit or unjust enrichment basis, asserting that native soil specified for backfill was too wet to compact properly.

The municipality maintained that settlement resulted from insufficient compaction at the lower levels of the trench and that the contractor was contractually responsible for remediation at no additional cost.

The court accepted expert evidence that settlement was caused by poorly compacted backfill and found the contractor failed to prove unsuitable soil or any oral agreement for additional compensation.

The court held the remedial work was required due to deficiencies in the contractor’s work.

The moving party sought to set aside an assessment officer’s report and certificate assessing a solicitor’s account arising from legal services in litigation involving a family dispute over powers of attorney.

The court held that a motion opposing confirmation of a certificate under the Solicitor’s Act is in the nature of an appeal and generally limited to the evidentiary record before the assessment officer.

New affidavit evidence alleging lack of retainer, conflict, and solicitor negligence was excluded because it had not been before the assessment officer and no motion to admit fresh evidence was brought.

The court further found no jurisdictional error in the assessment officer proceeding with the assessment and no error in principle in calculating the assessed fees.

The motion to set aside the assessment was dismissed.

The moving parties sought to set aside an Order for Assessment and subsequent costs order relating to a solicitor’s accounts.

The moving party asserted that she never retained the solicitor and therefore should not have been subject to the assessment process.

The court held that to set aside an assessment order there must be a bona fide dispute regarding the existence of the retainer, and mere assertions are insufficient.

Reviewing documentary evidence including signed client forms, engagement correspondence, payment of an initial retainer, and communications acknowledging the solicitor-client relationship, the court found overwhelming evidence that the solicitor had been retained.

The court concluded that the motion was based on unsupported and disingenuous claims and dismissed it.