Marco Drudi

Donset Construction Limited moved to withdraw admissions regarding the quantification of lien claims and to vary summary judgment orders previously granted in favour of MGI Construction Group and Venture Excavating & Contracting Ltd. Donset argued its failure to appear at the original summary judgment motions was due to mistake.

The court denied the motion to vary, finding Donset's non-attendance was not due to accident or mistake but deliberate avoidance.

Although leave to withdraw admissions was granted for expediency, the court found that even if the new evidence had been considered, it would not have changed the original summary judgment amounts.

The motions were dismissed with costs awarded to MGI, Venture, and Strela Trucking Ltd.

The defendant brought a motion for leave under s. 67(2) of the Construction Lien Act for production and discovery of the plaintiff.

The plaintiff brought a cross-motion for similar relief against the defendant.

The plaintiff had previously set the action down for trial, triggering Rule 48.04(1) of the Rules of Civil Procedure, which requires a substantial and unexpected change in circumstances to grant leave for further discovery.

The court granted the defendant's unopposed motion.

The court dismissed the plaintiff's cross-motion, finding that the plaintiff deliberately chose to set the action down for trial without completing discoveries and failed to meet the strict test under Rule 48.04(1).

The defendants (Foodfest, Henry Ender, and Sue Ellen Ender) brought a motion for leave to appeal a decision that dismissed their summary judgment motion, which sought to dismiss the plaintiff's claims against them on the basis of limitation periods.

The court applied the strict two-part test for granting leave to appeal under Rule 62.02(4).

It found no conflicting decisions on matters of principle and no reason to doubt the correctness of the motion judge's order that transcended the immediate parties' interests.

The motion judge's finding that the discoverability of the conspiracy claims was a genuine issue requiring a trial was upheld.

Consequently, the motion for leave to appeal was dismissed, and costs were awarded to the plaintiff.

The applicants commenced an application seeking a compulsory purchase of their shares or winding up of the companies, along with an initial motion for an interim receiver.

After receiving financial disclosure, the applicants abandoned the initial motion and brought an amended motion for an inspector, which they later also abandoned in favour of different relief.

The respondents sought costs thrown away for the abandoned initial motion and costs for the amended motion.

The court awarded the respondents costs thrown away 'on account' and costs of the amended motion on a partial indemnity basis, noting the applicants' approach of seeking draconian relief only to abandon it caused unnecessary legal work.

The defendants sought costs following the plaintiff’s agreement to vacate certificates of pending litigation (CPLs) that had been obtained ex parte against their properties.

The court found that the plaintiff failed to make full and frank disclosure when obtaining the CPLs and that the defendants were therefore entitled to costs of the motion to vacate.

While the defendants requested full indemnity costs exceeding $74,000, the court held that the plaintiff’s conduct did not reach the egregious level required for full indemnity and instead justified substantial indemnity costs.

Applying the factors under Rule 57.01 and the indemnity principle, the court fixed reasonable fees at $35,000 plus HST and disbursements.

Costs were ordered payable within 30 days.

In a construction lien action, the defendant moved to oppose confirmation of a master's costs decision following trial.

Prior to trial, the defendant had delivered an offer to settle for $75,000 inclusive of costs and interest.

After trial, the plaintiff recovered a total amount for principal and costs that was approximately $3,000 less than the settlement offer, but the master declined to apply the cost consequences under Rule 49.10 of the Rules of Civil Procedure on the basis that the offer was vague because it included unquantified costs.

The court held that the inclusion of costs within a fixed settlement amount did not render the offer incapable of meaningful comparison and that the master erred in failing to apply Rule 49.10.

The court ordered that the plaintiff receive partial indemnity costs to the date of the offer and the defendant receive partial indemnity costs thereafter.

The plaintiff subcontractor moved to strike the defendants’ pleadings for alleged non‑compliance with a prior court order requiring an accounting of trust funds under s. 8 of the Construction Lien Act and sought partial summary judgment declaring a breach of trust.

The defendants produced extensive accounting records but did not provide cancelled cheques, explaining the practical difficulty and asserting that sufficient project funds had been received to satisfy any proven entitlement.

The court held that striking pleadings is an extreme remedy and found the defendants had substantially complied with the order.

The request for a declaration of breach of trust was also premature because entitlement to the remaining disputed contract balance had not yet been determined.

The court directed that the disputed funds be paid into court or an agreed investment vehicle pending trial.

A dispute arose between a second mortgagee and a subsequent mortgagee over entitlement to interest from the proceeds of sale of mortgaged property.

Prior to advancing funds and registering a third mortgage, the subsequent mortgagee received email assurances from the second mortgagee that the second mortgage was in good standing.

In fact, interest payments under the second mortgage had never been made and had been privately waived or deferred between the second mortgagee and the mortgagor.

The court held that the representations created an equitable estoppel preventing the second mortgagee from claiming interest arrears that were inconsistent with those assurances.

The second mortgagee was limited to interest accruing only after the last representation that the mortgage was current.

A contractor sued a municipal owner after being terminated from a major civic construction project shortly before substantial completion.

The owner alleged the contractor was in default for failing to meet milestones and failing to comply with scheduling and change directives.

The court held that even if breaches occurred, they did not amount to a fundamental breach justifying termination, particularly where the project was approximately 95–98% complete and delay damages could be compensated in money.

The court further found the owner had compromised the consultant’s contractual role of impartiality by directing the consultant’s notice of default and failed to act in good faith under the dispute resolution provisions.

The termination was therefore wrongful and invalid.

In the liability phase of a civil trial arising from a dispute between a construction contractor and a municipality, the court determined liability on the contractor’s claim and the municipality’s counterclaims.

The contractor succeeded on its claim and on its defence to the counterclaims.

The municipality’s counterclaims were dismissed.

The court indicated that detailed reasons would follow and directed the parties to provide written submissions regarding costs of the trial phase.

The plaintiff sued his former family lawyer and the lawyer’s firm for negligence arising from advice and drafting of a separation agreement that waived spousal support.

The plaintiff argued that the agreement was vulnerable to challenge and that counsel failed to adequately advise him of the risks and should have ceased acting once the agreement was attacked in subsequent litigation.

The court held that the lawyer met the heightened standard of care applicable to a family law specialist, having properly explained the risks and drafted a robust spousal support waiver.

The court also found no breach in continuing the retainer and concluded that causation and damages were not established, including under a lost‑chance analysis.

The action was dismissed.

An elderly co-owner of a multi-unit residential property sought an order for partition and sale under the Partition Act, along with the potential appointment of a receiver/manager pending sale.

The court held that a tenant-in-common has a prima facie right to seek partition or sale unless the opposing party proves oppression, malice, or vexatious intent.

The respondents failed to demonstrate such circumstances, and evidence showed a lack of transparency and accounting in the property's management.

The court ordered that the property be valued and listed for sale, with the respondents given a short opportunity to purchase the applicant’s interest at fair market value.

If no acceptable offer is made, a receiver/manager will be appointed to manage and sell the property.

Co-owners of a residential apartment complex brought a motion to stay a partition and sale application or, alternatively, to have it heard together with or consolidated with an earlier civil action involving related family disputes over the property and alleged financial dealings.

The court considered Rule 6.01(1) of the Rules of Civil Procedure governing consolidation of proceedings and the balance of convenience factors articulated in prior case law.

The court held that the two proceedings involved different legal issues and procedural postures, with the application proceeding on affidavit evidence and the action involving historical contractual and estate-related claims.

The court also found the motion was brought late and appeared designed to delay adjudication of the partition application.

The motion to stay, consolidate, or hear the matters together was dismissed.

Following an unsuccessful motion by the defendant to dismiss a contempt motion, the court addressed costs.

Although the defendant did not succeed on the motion, the court found merit in the defendant’s complaints regarding the organization and drafting of the plaintiffs’ materials, which were described as poorly organized and “reader hostile.” Applying Rule 57.01 of the Rules of Civil Procedure, the court considered the parties’ conduct and its impact on the duration and efficiency of the proceeding.

The court concluded that the plaintiffs’ conduct justified a costs award against them despite their success on the motion.

Costs of $7,000 were awarded to the moving party.

The defendant brought a motion to dismiss or stay a civil contempt motion arising from an alleged breach of a prior injunction restricting dealings with former firm clients.

The defendant argued the contempt motion lacked sufficient particulars, served no purpose because the underlying order had expired, and constituted an abuse of process.

The court held that although the materials were poorly organized and lacked clarity, the defendant had not demonstrated a complete absence of fair notice of the allegations.

The court also found that the expiry of the order did not eliminate the public interest in enforcing respect for court orders and that the high threshold for abuse of process had not been met.

The motion to dismiss the contempt proceeding was refused, but the plaintiffs were ordered to serve clear and concise particulars of the alleged contempt.

The vendor sought an order requiring the purchaser to replace a $64,000 letter of credit used as a security deposit under an Agreement of Purchase and Sale after the vendor had drawn down the existing letter of credit.

The purchaser argued that the obligation to maintain the security deposit ended once the contractual conditions for its return were satisfied, namely the issuance of final grading certificates and completion of the top coat of asphalt on the subdivision roads.

Interpreting the agreement as a whole, the court held that the obligation to issue or maintain letters of credit was not independent of the obligation to maintain the security deposit itself.

Once the security deposit obligation expired under the amended return provisions, there was no contractual basis to compel the purchaser to issue a new letter of credit.

The application was dismissed and costs were awarded to the purchaser.