Marc A.J. Huneault

The Court of Appeal for Ontario considered a motion regarding an appeal that arose under the Construction Lien Act.

The moving parties (respondents) argued that the Court of Appeal lacked jurisdiction over the appeal.

The court agreed, finding that jurisdiction for such matters lay with the Divisional Court, and that the question of whether the underlying order was final or interlocutory was for the Divisional Court to decide.

Consequently, the Court of Appeal quashed the appeal and declined to exercise its discretion to transfer the appeal to the Divisional Court.

Costs were awarded to the successful moving parties.

The Crown appealed a trial judge's decision to stay proceedings on charges of impaired driving and driving over the legal limit.

The trial judge had found that the accused's language rights under sections 7, 10(a), and 10(b) of the Charter were infringed because the police did not communicate with him in French, and that he was arbitrarily detained under section 9.

The Superior Court of Justice allowed the appeal, finding that the trial judge erred by raising the language rights issue on his own during closing arguments, taking improper judicial notice of facts, and misapplying the law on language rights.

The court also found no arbitrary detention and set aside the stay of proceedings, remitting the matter back to the trial court to hear a pending section 11(b) application.

The Plaintiffs brought a motion for discovery of documents from the City of Greater Sudbury and interveners in advance of cross-examinations on affidavits for a pending interlocutory injunction motion.

The Plaintiffs sought documents related to the City's alleged bad faith and unfair treatment towards them, particularly in comparison to how the City dealt with their neighbours (the interveners).

The court found that allegations of bad faith or unfair treatment were not relevant to the pleaded causes of action (negligence, negligent misrepresentation, estoppel) or the criteria for injunctive relief as currently framed in the Statement of Claim.

Consequently, the request for documents pertaining to the neighbours' properties (1380 Keast Drive and 1366 Keast Drive) was dismissed.

However, the court ordered the City to produce records of communications related to the Plaintiffs' own permit applications and construction at 1377 Keast Drive, finding these relevant.

The plaintiff, Shaver-Kudell Manufacturing Inc., sought costs on a substantial indemnity basis for an abandoned summary judgment motion and partial indemnity costs for a 13-day trial, following its complete success on liability where it was found that the defendants misappropriated its trade secret and confidential customer information.

The defendants argued for deferral of costs, challenged the scale of costs for the summary judgment motion, and disputed the quantum of costs and disbursements.

The court determined that costs should not be deferred, found the plaintiff's Rule 49 offer to settle the summary judgment motion valid, and awarded partial indemnity costs for the summary motion to the date of the offer and substantial indemnity thereafter.

The court also fixed the trial costs, making adjustments for certain claimed amounts and expert fees, ultimately ordering the defendants to pay specific amounts for both the summary motion and the trial.

The plaintiffs, having been awarded damages for civil fraud and misrepresentation regarding a septic system and retaining wall, sought full or substantial indemnity costs.

The defendants argued for no costs or reduced costs, citing partial success of the plaintiffs' claims and their own settlement offers.

The court, considering the defendants' objectionable conduct, including civil fraud and high-handed actions post-transaction, awarded substantial indemnity costs to the plaintiffs.

The court balanced the plaintiffs' partial success and some inefficiencies against the defendants' conduct and failure to make reasonable offers.

Following the dismissal of a motion brought by the defendant and a lien claimant to declare the plaintiff's construction lien expired, the court determined the costs payable to the successful plaintiff.

The plaintiff sought substantial indemnity costs of over $80,000, citing an unaccepted offer to settle and the importance of the motion.

The court found the offer did not comply with Rule 49 and awarded partial indemnity costs.

Applying the principle of proportionality and considering the factors in Rule 57.01, the court fixed costs at $22,000 inclusive of disbursements and HST.

The plaintiff bank sought summary judgment against the defendant guarantor for a mortgage deficiency.

The defendant argued her guarantee was released due to lack of notice regarding mortgage renewal and the bank's negligence in withdrawing funds, and challenged the quantum of damages.

The court found that a default occurred and the guarantee remained valid and enforceable, as the mortgage was not renewed and the bank's errors did not release the guarantor.

However, the court identified genuine issues requiring a trial regarding the appropriateness of the claimed damages, including administrative fees, property management fees, real estate commission, and legal fees.

Consequently, the motion for summary judgment was denied, and a mini-trial was ordered to determine the quantum of damages.

The defendants Laari Construction Ltd. and SMS Rents brought a motion seeking a declaration that the plaintiff Carpenters Union's construction lien had expired due to non-compliance with Section 34(5) of the Construction Lien Act.

The defendants argued that the lien was improperly registered because it did not contain the names and addresses of the individual Carpenters Union members who performed the work.

The Carpenters Union contended that naming the trustee as agent for affected members was sufficient, especially given the practical difficulties in identifying individual workers and their specific entitlements at the time of registration.

The court found that the Carpenters Union had sufficiently identified the lien claimants by naming the trustee as agent for the affected members and complied with Section 34(5) of the Act.

Consequently, the motion brought by Laari and SMS Rents was dismissed.

The City of Greater Sudbury brought an application for declarations that three structures on a property vested in the City due to tax arrears were fixtures forming part of the land.

The respondent, who operated a business on the property, argued the structures were chattels that it was entitled to remove.

The court applied the test for distinguishing chattels and fixtures, finding that the structures were affixed to the land, intended for the beneficial use of the land, and could not be easily dismantled and relocated.

The court declared the structures to be part of the land owned by the City and granted a permanent injunction preventing their removal.

In complex litigation arising from a MURB real estate investment and foreclosure action, investor defendants sought a preliminary determination that the development had never achieved a cash flow positive position before the foreclosure proceeding was commenced.

They argued that accounting adjustments relied upon by the developer improperly imputed notional rental income and altered expenses, which if rejected would demonstrate that the mortgage was never in default.

The court held that the competing accounting methodologies, contractual interpretation of the offering memorandum and cash flow guarantee, and disputed factual issues regarding market conditions, vacancies, and management could not be resolved summarily.

These matters required full examination through the reference previously ordered in the case management process.

The defendants brought a motion for leave to amend their Statement of Defence to add a counterclaim alleging negligent misrepresentation, abuse of authority, and breach of procedural fairness against the Crown.

The plaintiff opposed the amendment on the basis that the proposed claims disclosed no reasonable cause of action, were statute‑barred under the Limitations Act, constituted a collateral attack on other proceedings, and were partly advanced on behalf of a deceased individual.

Applying Rule 26.01 of the Rules of Civil Procedure, the court held that amendments should be permitted unless non‑compensable prejudice would result and that the proposed claims arose from the same core factual nexus already pleaded.

The court found that the discoverability principle could apply and that any limitation defence should be determined at trial.

Leave was granted to amend the pleading to add the counterclaim, except for claims seeking aggravated, punitive, and exemplary damages.

Purchasers of rural property alleged that the vendor misrepresented the location of the boundary and sought a declaration that they owned an additional 2.3 acres, a vesting order, and damages for trespass and conversion.

The defendant vendor moved for summary judgment, arguing that the parcel conveyed was the exact property described in the registered plan and protected by the Land Titles Act.

The court held that, because the property was registered under the land titles system and no fraud was pleaded, the purchasers could not obtain rectification of title or a vesting order inconsistent with the registered parcel.

Summary judgment was granted dismissing the claims for declaratory relief and a vesting order.

Claims for damages relating to trespass and removal of soil raised triable issues and were permitted to proceed to trial.