Michael Arnold Handler

In a reference under the Construction Lien Act, multiple contractors sought to enforce their claims for lien against the owner and mortgagees of a townhouse development.

The owner had defaulted, and a subsequent mortgagee posted security under s. 44(1) to vacate the liens and facilitate the sale of the remaining units.

The court determined the timeliness and quantum of the various lien claims.

The court held that because the mortgagee chose to post security under s. 44(1) rather than s. 78(10), the liens ceased to attach to the premises and instead became a charge on the posted security in full, rather than being limited to the holdback deficiency.

Alternatively, the court found the mortgagee had acted as an 'owner' under the Act by taking over the completion and sale of the project.

Following a successful civil trial in which the plaintiffs recovered $50,000, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs exceeding $48,000 including taxes and disbursements.

The court considered the parties’ conduct during trial, including delays and procedural complications caused by the defendant and his lay agent, as well as the proportionality of costs relative to the amount recovered.

While acknowledging that the plaintiffs prevailed and that their disbursements were reasonable, the court reduced the requested amount to ensure proportionality.

Costs were fixed at $35,654.19 inclusive of HST and disbursements.

The plaintiff subcontractor brought a construction lien action against the defendant general contractor and owner for unpaid invoices and extras relating to structural steel work.

The defendant general contractor counterclaimed for delay, deficiencies, and back charges, arguing the plaintiff failed to adhere to the project schedule and change order procedures.

The court found that the parties never agreed to a formal written contract or the change order procedure, but proceeded on an agreed price and scope of work.

The court held the plaintiff completed its work within a reasonable time and was not responsible for the project delays, which were attributable to the general contractor.

The plaintiff's claim for the contract balance and proven extras was allowed, and the defendant's counterclaim was dismissed.

The applicant in a human rights proceeding alleging sexual harassment and disability discrimination requested interim orders for document production and extensions of time.

The Tribunal ordered the organizational respondent to transcribe the illegible handwritten notes of its investigator at its own cost, finding that the purpose of pre-hearing disclosure would be defeated if documents relied upon were illegible.

The Tribunal also granted the applicant's requests for extensions of time to file medical records and other documents, finding no prejudice to the respondents.

The applicant's request for production of jurisprudence referred to by the investigator was denied as speculative.

A construction contractor sued a homeowner for unpaid amounts under a residential renovation contract and for authorized extras.

The homeowner counterclaimed for alleged deficiencies, completion costs, and other expenses.

The court reconstructed the terms of the contract based on quotes, oral agreements, and communications because no written contract existed.

It found the homeowner breached the contract by refusing to pay a reasonable portion of the progress payment and by denying the contractor access to complete the work and remedy minor deficiencies.

The court held that the contractor was entitled to the unpaid contract balance and payment for authorized extras, subject to deductions for reasonable completion costs.

Judgment was granted for the contractor and the counterclaim was dismissed.

The applicant filed an application under section 34 of the Human Rights Code.

A hearing was scheduled and notice was sent to the parties.

The applicant failed to attend the hearing and provided no explanation.

The Tribunal deemed the application abandoned and dismissed it.

The respondent supplier manufactured custom doors for the appellant subcontractor, who failed to pay.

The supplier claimed breach of trust under s. 8(1) of the Construction Lien Act against the subcontractor and its principals.

The trial judge dismissed the trust claim because the supplier did not know the specific improvements where the doors were installed.

The Divisional Court allowed the appeal.

The Court of Appeal dismissed the appellants' appeal, holding that s. 8(1) does not require a supplier to intend that materials be incorporated into a known and specific improvement at the time of supply.

A link to the improvement is sufficient, and in this case, the link was established because the subcontractor deliberately frustrated the supplier's attempts to trace the materials.

The appellant appealed an order staying the Ontario proceeding on the basis of forum non conveniens.

The respondent undertook not to raise the expiry of a limitation period if the matter proceeded in Manitoba within 60 days.

The Court of Appeal agreed with the motion judge's determination that Manitoba was the proper forum and dismissed the appeal, awarding costs to the respondent.

The appellant supplier appealed the dismissal of its breach of trust claim against the individual directors and an employee of a defunct contractor under s. 8 of the Construction Lien Act.

The trial judge had dismissed the claim, relying on a previous decision to hold that the supplier must intend the materials to be used for a known and identified improvement.

The Divisional Court allowed the appeal, distinguishing the previous decision and holding that the plain language of the Act does not require such intent.

The Court found the directors and the employee who had effective control of accounting jointly and severally liable for the breach of trust.

A load broker made a voluntary assignment in bankruptcy.

Prior to bankruptcy, it had co-mingled moneys received from shippers instead of segregating them in a trust account for carriers as required by the Load Brokers Regulation.

After bankruptcy, the trustee collected moneys owed by shippers and held them in a separate account.

A carrier sought payment of its outstanding accounts from these segregated funds.

The motion judge held that the funds satisfied the conditions for a trust and must be paid to the carrier, excluding them from distribution to creditors under the Bankruptcy and Insolvency Act.

The Court of Appeal dismissed the trustee's appeal, confirming that the statutory trust obligations apply to a trustee in bankruptcy who collects and segregates carrier fees.

The appellants appealed a decision refusing to set aside a default judgment.

The Court of Appeal dismissed the appeal, finding no reason to interfere with the motion judge's decision.

The appellants failed to satisfy the conventional test for setting aside a default judgment, particularly failing to explain an eight-and-a-half-year delay, and had already acknowledged the judgment's validity by unconditionally satisfying it.

The appellant supplied construction materials to a business partly owned by the respondent's husband.

When the business failed to pay, the appellant registered a lien, which it later released in exchange for a mortgage on the respondent's matrimonial home.

The trial judge found the respondent's signature on the mortgage was forged and declared it void, also dismissing the appellant's counterclaims.

On appeal, the Court of Appeal upheld the dismissal of the counterclaims, finding that a valid contract provided a juristic reason for any enrichment, and there was no evidence the respondent knowingly received trust property.

Following the dismissal of the appellant lawyer's appeal from a Small Claims Court judgment regarding unpaid solicitor's fees, the court determined the quantum of costs.

The successful respondent sought $8,076.62 on a partial indemnity basis, while the appellant argued for $1,380 to $2,070 based on proportionality to the $6,879.35 claim.

Applying the principles of reasonableness, proportionality, and the reasonable expectations of the parties, the court fixed costs at $3,500 inclusive.

The appellant lawyer appealed a Small Claims Court decision dismissing his action for unpaid legal fees against his former clients.

The trial judge found that the parties had an oral agreement that all legal fees would be paid from the proceeds of a property sale, and that the appellant was estopped from claiming further fees due to his assurances and subsequent six-year delay in bringing the action.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence, application of promissory estoppel, or application of the doctrine of laches.

The appellant appealed from an order of the Superior Court of Justice.

The Court of Appeal found that although the material before the motion judge was somewhat deficient, there was no palpable and overriding error in her reasons.

The appeal was dismissed with costs fixed at $4,500.

The appellants sold a book of business and list of customers to the respondent under a share purchase agreement that included a non-competition agreement.

The trial judge found that the non-competition agreement precluded the appellant from doing business with former customers for four years.

The Court of Appeal upheld the trial judge's decision, finding that despite some ambiguity, the commercial sense of the transaction supported this interpretation.

The appeal was dismissed with costs.

The appellants appealed a trial judgment awarding the respondent $12,203.73 for unpaid commissions and $28,400.00 in costs on a substantial indemnity basis.

The Divisional Court upheld the trial judge's finding on the merits, concluding there was ample evidence to support the commission entitlement.

However, the court found the trial judge erred in the costs award, noting the importance of proportionality and reasonableness under the simplified rules.

The appeal was allowed in part, with the trial costs reduced to $10,000.00.