Luigi Iantosca

The court considered a motion by the defendants (the Owners) for security for costs in a construction lien action.

The Owners argued that the plaintiff, Backyard XP Inc., was a shell company with insufficient assets to pay costs if unsuccessful.

The court found that the Owners met the threshold for security for costs and ordered Backyard to post $25,000, staggered in two tranches.

The court also addressed the impact of a counterclaim and apportioned the security accordingly.

Costs of the motion were awarded to the Owners, proportionate to their success.

The plaintiff, Stainless Steel Products (SSP), brought a motion to set aside a registrar's order dismissing its action for delay.

The action sought payment of a default judgment from Ohio and a declaration that a property transfer was a fraudulent conveyance.

The court applied a contextual approach, considering factors such as the explanation for delay, inadvertence, and prejudice to the defendants.

The court found the delay satisfactorily explained, the failure to meet the deadline inadvertent, and no significant prejudice to the defendants.

Despite uncertainty regarding the promptness of the motion, the court exercised its discretion to set aside the dismissal order in the interests of justice.

The defendants, Mirella Cesario-Valela and Vito Valela (the 'Owners'), sought leave to issue a third-party claim against Garrison Creek Construction Inc. ('Garrison'), alleging it was an alter ego of the plaintiff, Backyard XP Inc. The court dismissed the motion, finding that under the Construction Act, a third-party claim must be for contribution or indemnity, not for damages as proposed by the Owners.

The court emphasized that the Act's scheme does not permit adding non-parties by counterclaim or third-party claim for general damages, even if judicial efficiency might suggest otherwise.

The plaintiff requested a case conference to resolve a scheduling dispute for a mandatory mediation.

The mediator offered dates in late November, but the third party's counsel was only available starting December 11.

The court expressed exasperation at the parties' inability to resolve a two-week scheduling difference, directing them to agree to the December 11 date or face a case conference where a date would be summarily set and costs submissions heard.

The plaintiff, Infor Financial Inc., sought costs of $511,762.22 following a four-day trial where it obtained a judgment more favorable than its settlement offer.

The defendant, Centrilogic, Inc., argued the amount was excessive and disproportionate.

The court found the plaintiff was entitled to the full amount, applying partial indemnity costs up to the date of the settlement offer and substantial indemnity costs thereafter, in accordance with Rule 49.

The court rejected arguments of disproportionality and excessive time spent, noting the defendant's "hard-nosed approach" and intransigence throughout the litigation.

This construction lien reference involved a summary trial of an issue concerning the timeliness and bona fide nature of Honeywell Limited's claim for lien against Bondfield Construction Company Limited.

The Lien Vetting Committee, comprising Ozz Electric Inc., Urban Mechanical Contracting Ltd., and Zurich Insurance Company Ltd., argued that Honeywell's lien had expired.

The court found that Honeywell failed to prove its claimed last date of supply, as the evidence provided was deficient and contradictory.

The court also addressed the application of the rule in Browne v. Dunn, concluding it was not engaged because the contradictions were within the witness's own affidavit.

Furthermore, the court commented that even if the last date of supply had been proven, the supply after receiving notice of Bondfield's financial issues would not have been bona fide.

Consequently, Honeywell's lien was ruled to have expired and was ordered vacated.

The defendant owner brought a motion for directions seeking to hold the proceeds of a statutory adjudication award in trust, rather than paying the co-defendant contractor, due to a perfected construction lien registered by the plaintiff subcontractor.

The owner argued that paying the award would expose him to paying twice.

The Superior Court dismissed the motion, finding it lacked jurisdiction to vary or stay the adjudicator's order under the Construction Act outside of a judicial review application.

The court emphasized the Act's prompt payment scheme, noting that the owner must pay the award and the contractor would hold the funds in trust for the subcontractor.