M. Drudi

The plaintiff and defendants brought cross-motions regarding the sufficiency of answers to undertakings and refusals from examinations for discovery in a construction lien action.

The court ordered the defendants to provide further and better answers to several undertakings, finding their previous responses incomplete or non-responsive.

The court declined to order the production of the defendants' general ledgers and bank statements at this stage.

The defendants' motion to compel further answers from the plaintiff was dismissed, as the court found the plaintiff had either answered the undertakings or the defendants' follow-up questions exceeded the scope of the original undertakings.

The defendant moved for security for costs against the plaintiff, a Quebec holding company that acquired the claim via assignment from a bankrupt subcontractor.

Although the plaintiff demonstrated it had sufficient cash assets in Quebec (a reciprocating jurisdiction), the court ordered it to post $30,000 in security.

The court found that the overall justice of the case favoured an order because the plaintiff's assets were contingent on litigation success, the funds were essentially treated as the principal's personal property, and the plaintiff would suffer no prejudice from posting security.

In a construction lien action, the plaintiff subcontractor claimed damages for breach of contract against the defendant contractor.

The court determined that the contract between the parties was a fixed-price contract that did not incorporate the payment terms of the prime contract.

The defendant breached the contract by failing to pay the plaintiff's invoices and attempting to impose additional terms.

The court found the plaintiff was justified in terminating the contract and that its second lien was valid, directing the matter to an accounting phase to determine the quantum.

The plaintiff brought a motion for summary judgment against the defendants for breach of fiduciary duty and misrepresentation related to a failed real estate development project.

The plaintiff sought rescission of the contract and recovery of his $500,000 investment.

The defendants argued that the claims were statute-barred by the Limitations Act, 2002, and raised genuine issues regarding the existence of a fiduciary duty, the cause of the project's failure, and the calculation of damages.

The court dismissed the motion for summary judgment, finding that there were multiple genuine issues requiring a trial, including the nature of the relationship between the parties, the state of the defendants' knowledge, and the limitation period.

The defendant homeowners brought a motion for partial summary judgment seeking a declaration of their maximum holdback obligation under the Construction Lien Act and dismissal of the subcontractor’s claim against them beyond that amount.

The court considered whether the subcontractor’s second lien could enforce a holdback arising from services supplied prior to the discharge of an earlier lien and whether the project involved one continuing contract or a new contract after a hiatus in work.

The court held that once the first lien was discharged, the subcontractor’s lien rights for earlier services were extinguished and could not be revived.

Even if the later agreement constituted a continuation of the original contract, the subcontractor’s lien rights relating to earlier work had expired or were waived.

The owners’ holdback obligation was limited to ten percent of the value of services supplied after the later contract resumed.

The plaintiff subcontractor claimed payment for extras on a watermain project, while the defendant general contractor counterclaimed for backcharges.

The court applied the Goldsmith test to determine whether the claimed extras were within the scope of the subcontract.

The court dismissed the claims for remobilization, flood damage, sludge removal, and re-inspection, finding them either unproven or within the contract's scope.

However, the court awarded the subcontractor $39,179.71 for additional hand lining required due to an unforeseen change in the tunnel's slope.

The general contractor's counterclaim for backcharges was dismissed for lack of proof.

The plaintiffs brought a motion arising from refusals on discovery concerning requests for handwriting specimens.

The action alleged that a life insurance policy conversion application contained a forged signature and that the forgery was prepared by or on behalf of a corporate principal.

The court held that obtaining original signature specimens from the alleged individual involved was relevant to the pleaded forgery allegation and ordered the corporate defendant to produce up to 30 original signature samples for examination by the plaintiffs’ expert.

However, the request for signature specimens from another employee was refused because no pleaded allegation connected that individual to the alleged forgery.

Given the mixed success on the refusals, costs were ordered in the cause.

The plaintiff brought a motion seeking leave to deliver a fresh as amended statement of claim alleging tortious interference with inheritance rights, to add a new defendant, compel a capacity assessment of the defendant mother, examine her lawyer regarding preparation of a will, lift solicitor‑client privilege, and exempt evidence from the deemed undertaking rule.

The proposed amendments were based on allegations that the defendant lacked testamentary capacity when she executed a new will reducing the plaintiff’s inheritance.

The court found the proposed claims lacked material particulars, were unsupported by evidence, and were likely statute‑barred under the applicable limitation period.

The court also held the amendments would unduly expand and delay a focused action involving property accounting disputes.

Leave to amend and related relief were refused, but a limited extension was granted for the action to be set down for trial.

A subcontractor obtained judgment against a corporate officer for breach of trust under the Construction Lien Act after the officer’s defence was struck for failing to provide ordered financial disclosure.

Unknown to the creditor, the officer had earlier assigned himself into bankruptcy and later sought to have the creditor’s writ withdrawn following his discharge.

The creditor moved for leave nunc pro tunc under s. 69.4 of the Bankruptcy and Insolvency Act to continue the action notwithstanding the bankruptcy, arguing the debt arose from breach of fiduciary trust and would survive discharge under s. 178(1)(d).

The court held that the creditor’s failure to obtain prior leave was merely an irregularity caused by lack of notice of the bankruptcy.

Leave was granted nunc pro tunc and the judgment debt was declared to survive the discharge.

The defendant municipality brought a motion under Rule 31.11 seeking to read in discovery evidence of subcontractors in a construction dispute involving lien claimants.

After issuing reasons dismissing the motion, the court issued a supplementary endorsement addressing reply submissions that had not initially come to the judge’s attention due to an administrative issue.

The moving party argued that s. 15 of the Ontario Evidence Act permitted the use of discovery evidence of non-adverse parties against both subcontractors and the general contractor.

The court rejected that interpretation, holding that it would undermine the wording of Rule 31.11 limiting read‑ins to evidence against the adverse party.

The court accepted the reasoning in Cain v. Peterson as governing authority and affirmed dismissal of the motion.

The defendant municipality brought a motion seeking leave under Rule 31.11(1) of the Rules of Civil Procedure to read into evidence at trial excerpts from examinations for discovery of subcontractor lien claimants.

The motion arose in the context of a construction dispute and lien action concerning termination of a construction contract.

The responding party argued that discovery evidence given by one party cannot be read in against a different party in a multi‑party action.

The court held that the wording of Rule 31.11(1), specifically the use of the term “the adverse party,” restricts read‑in evidence to use against the party who provided it on discovery.

The motion was dismissed.

The plaintiff purchased a pre-construction condominium unit from the vendor, The Printing Factory Lofts Inc. Due to unexpected hydro duct placement, an exterior door was eliminated from the unit's plans.

The plaintiff closed the transaction under protest and sued the vendor, as well as Beaverbrook Homes Inc. and Anthony Lanni, for the loss of the door and construction deficiencies.

Beaverbrook and Lanni moved for summary judgment to dismiss the claims against them.

The court granted the motion, finding that Beaverbrook and Lanni were not parties to the Agreement of Purchase and Sale, which contained an entire agreement clause and specific releases.

The court also found no evidence of actionable misrepresentations by the moving parties, applying the parol evidence rule.

During a Trial Management Conference in a construction lien dispute, sub‑trade lien claimants raised concerns that the municipality’s defence and counterclaim lacked sufficient particulars regarding alleged deficiencies and delays attributed to various sub‑trades.

The court considered the purpose of particulars in civil proceedings, namely to define issues, prevent surprise, and facilitate trial preparation.

Although the municipality argued that extensive disclosure had been provided during discovery, the court held that the information must be presented coherently and with sufficient specificity.

The municipality was ordered to provide written particulars detailing the alleged deficiencies and delays, even where costs had not yet been incurred.