Megan Marrie

The appellant appealed a decision of the Superior Court of Justice dismissing its application for a declaration of rights respecting an easement held by the respondent over a portion of the appellant's lands.

The appellant argued that the application judge made a palpable and overriding error regarding the extent of the easement, claiming it extended from the shoreline into the channel.

The Court of Appeal found no error in the application judge's reasoning and dismissed the appeal, awarding costs to the respondent.

This endorsement addresses the costs of a successful motion brought by the defendants to transfer an action from Milton to Toronto.

The court, applying Rule 57 factors and principles from *Schreiber v. Mulroney* and *Boucher v. Public Accountants Counsel for the Province of Ontario*, ordered the plaintiffs to pay partial indemnity costs to the defendants.

This endorsement addresses the costs of a successful motion by the defendants to transfer an action from Milton to Toronto, which the plaintiffs had opposed.

The court applied principles from Schreiber v. Mulroney and Boucher v. Public Accountants Counsel for the Province of Ontario, considering Rule 57 factors and proportionality.

The plaintiffs were ordered to pay the defendants partial indemnity costs of $2,980.00.

The defendants brought a motion to transfer the action from Milton (Central West Region) to the Toronto Region, arguing that Toronto was the more appropriate venue.

The plaintiffs opposed the motion.

The court granted the transfer, finding no rational connection to Milton and that Toronto was a substantially better venue, based on a holistic application of Rule 13.1.02(2)(b) factors, including the location of the project, the events giving rise to the claim, and the parties' residences.

The defendants brought a motion to transfer the action from Milton (Central West Region) to the Toronto Region, pursuant to Rule 13.1.02 of the Rules of Civil Procedure.

The plaintiffs opposed the motion.

The court granted the transfer, finding no rational connection to Milton and determining that Toronto was a substantially better venue, given that the project, contractual agreement, and all events giving rise to the claim were located in Toronto, as were the parties and their counsel.

The applicant, Amsterdam Square Apartments Inc., sought court approval for a plan of arrangement under section 182 of the Business Corporations Act to lower shareholder voting thresholds from 90-100% to a 2/3 majority.

The purpose was to address difficulties in managing the non-profit co-operative due to high approval requirements for actions like share reallocation, sublicensing, share transfers, and capital expenditures.

The respondent opposed, arguing the application was premature and lacked sufficient detail.

The court denied the application, finding it premature because the necessity for sweeping changes was not fully demonstrated, and the plan lacked specific details on how the Board intended to address the underlying issues via bylaw amendments after the thresholds were lowered.

The court emphasized that the specific bylaw proposals should be presented to shareholders and the court as part of the "fair and reasonable" analysis.

Costs were awarded to the respondent.

The plaintiff contractor brought an action against the defendant owner for extension and delay costs incurred during a construction project governed by a CCDC2 fixed price contract.

The project was delayed by six months due to owner-directed changes and design issues, which were addressed through Change Orders that extended the contract time and increased the price, but did not include the contractor's site and delay costs.

The court dismissed the action, finding that under the fixed price contract, the contractor was required to include all costs associated with a change in the Change Orders, or alternatively, provide timely written notice of a delay claim.

The court also declined to grant relief from forfeiture, concluding that the contractor's failure to follow the contractual notice provisions was unreasonable and undermined the cost certainty intended by the contract.

The plaintiff, Finn Way General Contractors Inc., brought a motion seeking leave to admit a late-served expert report concerning construction delays and costs.

The defendant, Lakehead University, opposed the motion, arguing the report was served late and that expert opinion evidence was unnecessary.

The court found a reasonable explanation for the late service and no prejudice to the defendant.

However, the court ultimately dismissed the motion, ruling that the expert report was not necessary to assist the trier of fact, as its observations were conclusions lacking discernible analysis and usurped the role of the trial judge.

This endorsement concerns the costs award following a judgment in favour of Finn Way General Contractor Inc. for $134,606.

Finn Way sought $85,000 in costs, while Superior Masonry (Thunder Bay) Ltd. proposed $25,000.

The court, applying Rule 57.01 of the Rules of Civil Procedure, fixed costs at $25,000 plus HST and disbursements, disallowing travel expenses for out-of-town counsel as no special expertise was required.

The plaintiff general contractor sued the defendant masonry subcontractor for breach of contract after the defendant withdrew its bid due to a calculation error.

The court found that the defendant was bound by its bid and breached the contract by unilaterally withdrawing.

However, the court rejected the plaintiff's claim that the parties had agreed to an $80,000 reduction in the bid price.

The plaintiff was awarded damages for the difference between the defendant's original bid and the replacement subcontractor's price, plus mitigation costs and lost markup.

The plaintiff architect brought a construction lien action for unpaid fees against the defendant developer of a high-rise condominium.

The developer counterclaimed for delay and impact damages, alleging the architect failed to coordinate consultant drawings and made design errors.

The court found the architect's coordination duty was limited to cooperating with other consultants, not managing them.

The architect met the professional standard of care and validly suspended services for non-payment.

The court awarded the architect $55,906.54 for agreed base services but dismissed claims for unapproved extras.

The developer's counterclaim was dismissed entirely.

The moving party, Onespace Unlimited Inc., brought a motion to strike portions of a reply affidavit sworn by the responding party's principal witness in advance of a summary trial.

The moving party argued the impugned statements contained improper argument, opinion evidence from a lay witness, and legal conclusions.

The court granted the motion in part, striking statements that constituted improper argument or unqualified expert opinion, while retaining statements that were factual observations or inextricably tied to the witness's overall impressions.

This endorsement addresses several refusals arising from examinations for discovery between the Toronto Transit Commission (TTC) and two of the Designers, WSP Canada Inc. and IBI Group Architects (Canada) Inc., in a complex construction litigation involving the Steeles West Subway Station project.

The court applied rules of discovery, relevance, and proportionality to compel answers or further productions regarding litigation privilege, evidence supporting delay allegations, reasons for not replacing a contractor, and clarification of legal positions on specifications.

The applicants obtained a default judgment against their former lawyer for missing limitation periods in their personal injury claims.

They sought to garnishee the lawyer's professional liability insurance policy with LawPro.

LawPro had denied coverage because the lawyer completely failed to report the claim or cooperate in its defence.

The court dismissed the motion, finding that LawPro's denial of coverage was appropriate due to the lawyer's fundamental breach of the policy's cooperation condition.

Relief from forfeiture was unavailable, and public policy did not require LawPro to operate as a no-fault insurer.

The plaintiff brought a motion for a status hearing and timetable under Rule 48.14 of the Rules of Civil Procedure, while the defendants sought to have the action dismissed for delay.

The court applied the two-part test from Khan v. Sun Life, requiring the plaintiff to show an acceptable explanation for the delay and that the defendants would suffer no non-compensable prejudice.

The court found the plaintiff's explanations for the delay, which included changing counsel and preparing summary judgment materials, to be credible.

Furthermore, the court determined the defendants would not suffer non-compensable prejudice, as a key witness had been located.

The court ordered the action to continue and directed the parties to agree on a timetable.

The appellants appealed a motions judge's decision dismissing their motion for summary judgment based on the expiry of the limitation period.

The motions judge found a genuine issue for trial regarding when the respondent knew or ought to have known that the water leakage was caused by the appellants' acts or omissions.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the motions judge's conclusion or his decision not to exercise fact-finding powers under Rule 20.04, as resolving the discoverability issue would require considering virtually all trial evidence.

The plaintiff condominium owner sought certification of a class action arising from allegedly defective balcony railings at a Toronto condominium complex.

After a railing detached and fell, engineering reports concluded the guard-rail assemblies did not comply with the applicable Ontario Building Code, requiring removal and replacement of all balcony railings and resulting in extended restrictions on balcony use.

The proposed class consisted of persons who owned, rented, or resided in units whose balconies were inaccessible during the remediation period.

The court held that the pleadings disclosed viable causes of action in negligence and breach of contract, that an identifiable class and common issues existed, and that a class proceeding was the preferable procedure with an adequate representative plaintiff.

Certification under the Class Proceedings Act, 1992 was therefore granted.

The defendant sought leave to appeal an interlocutory order dismissing its motion for security for costs.

The motion judge had found the plaintiff corporation had sufficient assets by treating a large shareholder loan as equity rather than a liability.

The Divisional Court granted leave to appeal under Rule 62.02(4)(a), finding there was a conflicting decision regarding the treatment of shareholder loans and that it was desirable to grant leave because the motion judge's calculation of assets and liabilities was unclear.

The plaintiffs moved for leave to amend their statement of claim in an action against former accountants arising from allegedly negligent accounting and tax advice.

The responding defendant argued that certain amendments advanced new causes of action for breach of contract and breach of fiduciary duty after expiry of the limitation period, and that other amendments withdrew admissions requiring leave under Rule 51.05.

The court held that the proposed amendments merely particularized allegations already pleaded and added facts supporting the original right of action, rather than asserting new causes of action.

The court also held that the impugned pleadings did not constitute admissions within Rule 51.05.

Leave to amend was granted.

LAWPRO brought a motion for directions regarding an order requiring it to pay out professional liability insurance proceeds to the applicants.

Three lawyers formerly employed by the respondent law firm had appealed a subsequent order dismissing their motion to vary the payout order, which they argued was made without notice to them.

The Court of Appeal held that the payout order was not automatically stayed under rule 63.01(1) because it was not the order under appeal.

However, applying the RJR-MacDonald test, the Court granted a discretionary stay under s. 134(2) of the Courts of Justice Act, finding that the lawyers would suffer irreparable harm if the policy was exhausted and that fairness dictated they should not be prejudiced by the applicants' failure to provide them with notice of the original motion.