Mauro Carabetta

The plaintiff, Weins Canada Inc., brought a motion seeking to include contractual pre-judgment and post-judgment interest in a draft order, following a successful summary judgment motion for breach of a commercial lease.

The original summary judgment order, which awarded $106,614.13 plus $10,000 in costs, did not explicitly mention interest, despite it being claimed in the Statement of Claim.

The defendant, Ensil Corporation, opposed the motion, arguing the court was functus officio.

The court found it was not functus officio as the order had not yet been entered.

However, the motion was dismissed because the plaintiff failed to provide any new evidence or sufficient reason to vary, amend, or add to the original reasons for decision.

The plaintiff landlord brought a summary judgment motion against its former commercial tenant for rent arrears and prospective damages for the unexpired term of the lease.

The tenant argued the lease was surrendered by agreement or operation of law, releasing it from future obligations.

The court found no surrender agreement was finalized and the landlord had effectively terminated the lease with notice of a claim for prospective damages under the Highway Properties framework.

Summary judgment was granted to the landlord for the rent arrears and prospective damages, less the security deposit.

The plaintiffs, Tony’s Touch Plumbing Ltd. and Level V Design & Build Inc., brought construction lien claims against the defendant, Hatcho Nersesian, for unpaid plumbing, HVAC, and project management services and materials supplied for a new home construction.

Mr. Nersesian disputed the claims, alleging overcharging, deficient work, and incomplete work, and brought counterclaims for backcharges and exaggerated lien claims under section 35 of the Construction Lien Act.

The court found that Mr. Nersesian breached his contracts with Tony’s by imposing unreasonable deadlines and terminating the contract without allowing an opportunity to complete work or rectify deficiencies.

The court also found that Level V was entitled to a project management fee for the initial "weather tight" stage and a commission on trades it introduced thereafter, but not a full project management fee for the entire project due to lack of evidence of services.

Mr. Nersesian's counterclaims for backcharges and section 35 damages against both plaintiffs were dismissed due to failure to mitigate and lack of evidence of damages.

The plaintiff appealed a Master's decision refusing to set aside the Registrar's second dismissal of the action for delay.

The Master had applied the Reid factors and found the plaintiff failed to explain the delay or rebut the presumption of prejudice.

The Divisional Court allowed the appeal, finding the Master erred in law by failing to balance the delay against the overarching principle in Rule 1.04 that proceedings should be determined on their merits.

The court noted the defendant's counsel contributed to the circumstances leading to the second dismissal by failing to respond to a settlement offer as promised, and there was no evidence that a fair trial was no longer possible.

Following earlier reasons dismissing competing motions relating to enforcement of an alleged settlement agreement and interlocutory relief in a corporate dispute, the court was asked to determine costs.

The moving party sought substantial costs relying on a prior offer to settle and alleged litigation conduct by another respondent.

The court held that neither side achieved meaningful success because the substantive dispute, including enforceability of the settlement agreement, would be determined at trial after the proceeding was converted into an action.

Given the largely technical successes and the likelihood that ultimate success would only be determined at trial, the court ordered that costs of the motions be costs in the cause.

No costs were awarded with respect to the parties’ competing claims for costs.

The plaintiff brought a motion to set aside a second registrar's dismissal order for delay.

The court applied the Reid factors and the Scaini contextual approach.

The court found that the plaintiff failed to adequately explain the litigation delay, which spanned almost three years, and failed to lead evidence to rebut the presumption of prejudice to the defendant given the expiry of the limitation period.

Although there was some evidence of inadvertence in missing the deadline, the motion was dismissed.