M. Butkus

The third party, Eaton Industries (Canada) Company, brought a motion for summary judgment to dismiss the third party claim of the London Transit Commission (LTC) on the basis that it was statute-barred by the Limitations Act, 2002.

The LTC's third party claim alleged environmental contamination caused by Eaton's predecessors.

The court found that the LTC had actual or ought to have had knowledge of its claim against Eaton by May 22, 2013, when it was served with the plaintiff's statement of claim, and failed to rebut the presumptive limitation period.

The court dismissed the LTC's arguments for a separate limitation period for other damages, concluding all claims were statute-barred.

The defendant brought a motion to dismiss the action for delay pursuant to Rule 24.01 of the Rules of Civil Procedure.

The plaintiff opposed the motion and requested an extension of time to restore the action to the trial list.

The court found that the delay was neither intentional nor contumelious, noting that much of the delay was caused by the plaintiff's former counsel withdrawing due to conflicts of interest.

The court also found no prejudice to the defendant, as all witnesses and documents were available.

The defendant's motion was dismissed, the plaintiff's request for an extension was granted, and costs of $20,000 were awarded to the plaintiff.

This costs ruling followed a trial where the plaintiff's modest claim was partially successful, but the defendants' $175,000 counterclaim was entirely unsuccessful.

The defendants failed to deliver a costs outline as directed and sought a 50% reduction in the plaintiff's costs, arguing the plaintiff's claim was arbitrarily reduced by the court.

The court declined to reduce the plaintiff's costs, fixing them at $33,462.36, emphasizing that the case was primarily about the misguided counterclaim and that the costs ruling was not an opportunity to revise the arithmetic of the main claim.

The plaintiff, Pylon Paving (1996) Inc., initiated a lien action for an unpaid balance of $20,200.85 for asphalt paving work.

The defendants, Arrow Lofts Inc. et al., counterclaimed for $175,000, alleging breach of contract and express warranty due to the plaintiff's failure to install 50 mm of asphalt and seeking full replacement.

The court found that the specified asphalt thickness could not be achieved due to underlying design flaws and the defendants' prior knowledge of these issues.

The defendants' counterclaim was dismissed as statute-barred and for failure to prove damages or present reasonable repair alternatives.

The plaintiff's claim was reduced by $10,000 due to its failure to document its concerns about the underlying deficiencies in writing, resulting in a judgment for $10,200.65.

The plaintiff moved to set aside a Registrar’s order dismissing the action for delay under Rule 48.14 of the Rules of Civil Procedure.

The court applied the contextual approach and the Reid factors, considering explanation for delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendants.

The plaintiff failed to provide a satisfactory explanation for lengthy litigation delay, including significant gaps in evidence regarding counsel’s reminder system and delay in bringing the motion.

The court also found prejudice to the defendants arising from missing documentary evidence and corporate changes undertaken in reliance on the dismissal order.

Balancing the interests of justice and the principle of finality, the court declined to set aside the Registrar’s order.