Michael A. van Bodegom

The plaintiff, a masonry subcontractor, sued the defendant general contractor for breach of a Contract A formed during a public construction tendering process, alleging the defendant was obligated to use it as the masonry subcontractor after naming it on its tender form submitted to the school board.

The court found no contract existed between the parties because the defendant never issued a call for tenders to subcontractors and no bid depository system was in place, meaning the Ron Engineering Contract A framework did not apply.

The court further held that even if a contract existed, the plaintiff's bid was materially non-compliant with the tender specifications, and the plaintiff failed to prove it suffered any damages given its inability to isolate expected profit from overhead costs and its mitigation income from other projects.

The moving party brought a motion for leave for judicial review of an adjudicator's decision.

The Divisional Court dismissed the motion for leave and awarded costs to the responding party in the fixed amount of $2,907.60.

The moving party brought a motion for leave to seek judicial review of two determinations made by an adjudicator.

The Divisional Court dismissed the motion for leave and ordered the moving party to pay costs of $5,000 to the responding party.

The appellant, Carmen DaSilva, appealed a lower court judgment that declared a transfer of her husband's one-half interest in a property to her as a transfer for undervalue, void against the trustee in bankruptcy, and set it aside.

The appeal raised three grounds: error in declaring the transfer at undervalue, error in finding the husband insolvent at the time of transfer, and error in finding an intention to defraud creditors.

The Court of Appeal dismissed all grounds, finding no palpable and overriding error in the application judge's findings regarding undervalue and insolvency, and noting that comments on intent were obiter.

The moving party brought a motion for leave to appeal the order of I.R. Smith J. dated February 25, 2022.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs in the amount of $5,000.

Nieltech Services Ltd., a subcontractor, brought a motion for summary judgment against Rosa Nudo-Perras, a director of Wasero Construction (1991) Ltd., for breach of trust under the Construction Act.

Nieltech claimed $45,757.26 for unpaid services.

Wasero and another director had declared bankruptcy, and Nudo failed to provide a proper accounting of trust funds.

The court found that Nieltech discharged its onus to prove a trust and non-payment, and Nudo failed to discharge her onus to account for the funds.

The court determined there was no genuine issue for trial and granted summary judgment against Nudo, finding her personally liable for the breach of trust.

Following a judgment on the merits, the successful defendant sought costs on a substantial indemnity basis due to the plaintiffs' and a non-party's vexatious conduct.

The court agreed that substantial indemnity costs were warranted, but reduced the requested amount by $15,000 to sanction the defendant's own witness for frustrating an examination.

Costs were fixed at $39,803.89, payable jointly and severally by the plaintiffs and the non-party.

Following the dismissal of the plaintiffs' action for specific performance due to egregious litigation misconduct, the defendant brought a motion seeking forfeiture of a $200,000 deposit and an order making the non-party principal of one of the plaintiffs personally liable for costs.

The court found that the plaintiffs' destruction and concealment of evidence made it impossible to determine who was at fault for the failed real estate transaction, warranting an adverse inference that the plaintiffs were not ready, willing, and able to close.

The court ordered the deposit forfeited to the defendant and held the non-party principal jointly and severally liable for costs due to his abusive litigation conduct, including the concealment of a related lawsuit between the plaintiffs.

The plaintiffs brought a motion for summary judgment to recover monies advanced to the defendants through a series of loans and a purported joint venture.

The defendants argued that the agreements were part of a joint venture, raised the defence of non est factum, and claimed one loan charged a criminal interest rate.

The court granted summary judgment for the loans made prior to November 12, 2017, finding no genuine issue for trial, rejecting the non est factum defence, and concluding the interest rate did not violate the Criminal Code.

However, the court found that the business dealings after November 12, 2017, which involved a joint venture, presented genuine issues requiring a trial.

Following the release of the appeal decision which allowed the appeal in part by reducing damages for statute-barred advances, the parties provided written submissions on the calculation of damages and costs.

The Court of Appeal accepted the appellants' submissions, reducing the damages and pre-judgment interest by $336,273, and awarded costs of the appeals and cross-appeal to the self-represented respondent in the fixed amount of $16,500.

The plaintiff advanced significant sums to the defendant and his company over several years, documented by promissory notes.

The trial judge found the advances were demand loans, not investments, and held the defendant and his company liable for fraudulent activities, while dismissing the defendant's slander action.

On appeal, the Court of Appeal held that the trial judge erred in his interpretation of the limitation period, finding that the earliest loans from 2000 and 2001 were statute-barred under the former six-year limitation period and could not be revived by later partial payments.

The appeal was allowed in part to reduce the damage award accordingly, but dismissed on all other grounds, including the cross-appeal.

The applicant's motion to amend its notice of application was previously dismissed.

The respondents sought costs of $12,979.13 on a substantial indemnity basis.

The applicant argued for no costs or deferred costs, citing divided success, novel questions of law, and its impecuniosity due to expropriation.

The court rejected the applicant's arguments, finding the respondents were entirely successful and the applicant's conduct in bringing a duplicative and unnecessary motion warranted rebuke.

The court awarded the respondents costs fixed at $12,000 on a substantial indemnity basis.

This addendum to the Reasons for Judgment corrects calculation errors identified by counsel for both parties.

The court revised six specific unit price items and an omitted item, leading to an increase in the total amount awarded to the plaintiff.

The final revised judgment requires the defendant to pay an increased sum plus pre-judgment interest.

The appellant appealed from orders made over ten years prior determining equalization, child support, and spousal support in a family law proceeding.

The appellant had failed to appear at trial in 2007 and at a subsequent motion to set aside the trial order in 2008.

The Court of Appeal admitted fresh evidence demonstrating the appellant's serious mental health issues, including PTSD and major depressive disorder, which rendered her incapable of attending the proceedings.

The court found that the appellant's absence was excused and that procedural fairness required setting aside the trial and motion orders.

The court ordered a new trial to determine the issues of equalization and support, set aside a garnishment order, and required the respondent to return garnished funds with interest.

The plaintiff contractor sued the defendant municipality for unpaid amounts under a unit-price contract for road reconstruction.

The claims included unpaid quantities of unit-price line items, unpaid claims for changes or extra work asserted during the project, and claims for changes and extras discovered during litigation.

The court first determined that the claims discovered during litigation were barred due to failure to provide timely notice, but the municipality had waived strict compliance with notice provisions for claims asserted during the project.

The court then analyzed each of the 36 individual claims, weighing the evidence of the parties' respective witnesses and records.

Ultimately, the court awarded the plaintiff $547,261.75 plus pre-judgment interest.

Following the dismissal of an application for judicial review regarding a municipal licensing by-law, the court determined the issue of costs.

The respondent City sought partial indemnity costs of $12,500, while the applicant argued for a maximum of $5,000.

The court noted that while the applicant was unsuccessful, it acted in good faith and the City could have avoided the litigation through better communication and practical assurances regarding the grandfathering of the applicant's buildings.

Costs were fixed at $5,000 payable to the respondent.

The Waterloo Region District School Board appealed an Ontario Municipal Board decision awarding interest to Erbsville Road Development Inc. on expropriated land from the date of draft subdivision approval, rather than the later date of actual expropriation.

The Divisional Court dismissed the appeal, holding that under s. 33(1) of the Expropriations Act, interest can accrue from a date preceding expropriation when the owner ceases to make productive use of the land due to the impending expropriation.

The court found the board member's determination that productive use ceased upon draft approval was reasonable.

The applicant, a corporate landlord, sought judicial review to quash the City of Waterloo's Residential Rental Housing Licensing By-law.

The applicant argued the licensing fees constituted an ultra vires indirect tax and that the by-law's application to townhouses but not apartment buildings constructively discriminated against families contrary to the Human Rights Code.

The Divisional Court dismissed the application, finding the fees were validly enacted to fund the licensing program and did not constitute a tax.

The Court also held the by-law did not discriminate on the basis of family status, as it targeted specific types of dwellings rather than any protected group.

The applicant sought judicial review of the respondent municipality's requirement to obtain residential rental licences for its buildings.

The applicant argued its buildings were exempt as 'Apartment Buildings' under the by-law and objected to a statutory declaration requiring confirmation of compliance with provincial statutes, arguing they did not apply retroactively.

The Divisional Court dismissed the application, finding the buildings did not meet the conjunctive definition of an apartment building, and that the statutory declaration only required compliance with provincial laws to the extent they actually applied to the grandfathered buildings.

The appellants guaranteed a loan made by the respondent to a retirement residence developer.

When the developer defaulted, the respondent sued the appellants on the guarantee and obtained summary judgment.

On appeal, the appellants argued they were released from liability because the loan terms were materially altered without their consent, specifically by converting the fixed-term loan to a demand loan and entering a forbearance agreement.

The Court of Appeal allowed the appeal, finding the motion judge failed to consider the totality of the evidence regarding material alterations and applied the incorrect test for prejudice.

The summary judgment was set aside and the matter referred to trial on the defences of material alteration and laches.