Maria Marusic

The plaintiff, 2283624 Ontario Limited, registered a construction lien against Performance Painting & Floor Coating Ltd. for alleged rental of sandblasting equipment, claiming approximately $58,760.

The plaintiff asserted an oral agreement for "fair value rental." The defendant, Performance, denied any contract, arguing there was no meeting of the minds and that the equipment was provided as a goodwill gesture for refurbishment, with a potential future purchase.

Performance had invested significantly in repairing the equipment.

The court found no contract for rental, noting the plaintiff was not in the rental business, there was no discussion of price or terms, and the lien was likely a tactic in a larger dispute.

The court dismissed the construction lien claim, ruling that equitable remedies were unavailable under the Construction Lien Act.

The defendants sought leave to appeal to the Divisional Court from an order requiring production of an environmental report over which litigation privilege was claimed.

The report had been referenced in an affidavit and supported by an invoice attached as an exhibit.

The court considered whether referencing the report and attaching payment documents constituted a waiver of litigation privilege and whether the dominant purpose test had been properly applied.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court found conflicting authority and concluded there was reason to doubt the correctness of the earlier order compelling production.

Because the issues regarding litigation privilege and waiver had broader importance to litigation practice, leave to appeal was granted.

A developer sued a municipality alleging breach of a supplementary subdivision agreement governing allocation of sewage capacity for a commercial and residential development.

The agreement provided that additional sewer capacity in the municipal system was reserved for the developer’s subdivision and that the municipality would not allocate capacity to lands outside the subdivision until the development was fully built out.

The municipality nevertheless allocated capacity to an adjacent development and expropriated a one‑foot reserve to allow connection.

The court interpreted the contractual language in light of the factual matrix and held the agreement granted the developer priority to available capacity.

The municipality breached the agreement by allocating capacity to the neighbouring development before completion of the subdivision.

The plaintiff proved loss‑of‑chance damages for lost leasing opportunities and was awarded compensatory damages, but punitive damages were denied.

A third party sought leave to amend his statement of defence to plead a limitation period under the Limitations Act, 2002 in response to a third party claim for contribution and indemnity alleging breach of fiduciary duty and negligence in a mortgage transaction.

The defendants opposed the amendment, arguing that allowing it after the expiry of the limitation period would cause non-compensable prejudice by foreclosing potential claims against their former counsel.

The court held that although a presumption of prejudice arises where a limitation period has expired, special circumstances rebutted the presumption because the defendants had advance notice of the proposed amendment and sufficient time to pursue any related claims.

The court concluded that any prejudice was self-created and granted leave to amend the pleading pursuant to Rule 26.01 of the Rules of Civil Procedure.