Michael Carmine Mazzuca

The plaintiff, an unpaid supplier of building materials, brought a motion under Rule 45.02 to have the proceeds of sale from one of the contractor's construction sites held in court pending the outcome of its action.

The plaintiff argued that the entire proceeds constituted a trust fund under section 8 of the Construction Act, even though the amount owed for materials supplied to that specific property was much less than the total debt owed across multiple projects.

The court held that the statutory trust under section 8 is project-specific, limiting the plaintiff's trust claim to the value of materials supplied to that particular property.

The motion was granted in part, with only the amount owed for that specific property, plus interest, ordered to be retained in court.

The applicants sought judicial review of an arbitrator's decision denying them intervener status in a labour grievance between a union and an employer regarding alleged subcontracting violations.

The applicants argued the grievance would adversely affect their ability to work and supply workers.

The Divisional Court dismissed the application, upholding the arbitrator's finding that the applicants lacked a direct and legal interest in the private dispute resolution process between the union and the employer.

The moving party brought motions to declare the plaintiffs' construction liens expired under the Construction Lien Act.

The substantive relief was granted on consent.

The only remaining issue was costs.

The court declined to award costs to the moving party, finding that its counsel had engaged in sharp practice by failing to respond to correspondence from opposing counsel that revealed a fundamental misunderstanding of the statutory deadlines during the COVID-19 pandemic.

The court held that correcting this clear mistake would not have sacrificed the client's rights and that the motions could have been brought ex parte or in writing.

The court dealt with the costs of a construction lien trial where the plaintiff, a union trust fund, successfully established holdback liability against the defendant general contractor.

Despite the judgment amount being relatively small compared to the litigation costs, the court awarded substantial indemnity costs to the plaintiff.

This decision was based on the defendant's failure to accept a reasonable offer to settle, its attempts to retroactively reduce holdback liability, and its lack of effort in narrowing the issues.

The court emphasized the remedial nature of the Construction Lien Act and the protection of workers' claims.

The defendants, two American corporations, brought a motion under Rule 21.01(3)(a) to dismiss an oppression claim for lack of subject matter jurisdiction, arguing they were not governed by the Ontario Business Corporations Act (OBCA).

The plaintiffs alleged an oral agreement for a 5% ownership interest in the defendant companies, asserting they were beneficial owners and the defendants were affiliates of Ontario corporations controlled from Ontario.

The court found that the OBCA's definition of "affiliate" could include foreign corporations controlled by the same person as an Ontario corporation, and that the Ontario Superior Court had jurisdiction over the oppression claim, as well as other claims for breach of contract and tracing.

The motion to dismiss was denied.

The appellant foreign corporations appealed a Master's order dismissing their motion to stay or dismiss the action for lack of territorial jurisdiction.

The Master found a real and substantial connection to Ontario based on a good arguable case that an oral contract for a 5% ownership interest was made and breached in Ontario.

The Divisional Court found no palpable and overriding error in the Master's characterization of the dispute or her conclusion, and dismissed the appeal.

The appellant, Deltro Electric Ltd., appealed from an order requiring it to repay $2 million USD to the respondent, Potentia Renewables Inc., with a receiver appointed over its assets in the event of non-payment.

The dispute arose from a failed business relationship concerning a ground-mount solar project in Barbados.

The application judge found that Deltro had breached and repudiated its obligations under a Letter of Intent and Amendment to Letter of Intent, and that final approval of the project had not been obtained within the required timeframe.

The Court of Appeal dismissed the appeal, upholding the application judge's interpretation of the contractual documents, rejection of fresh evidence, and appointment of the receiver with limited liability provisions.

This decision addresses a construction lien proceeding focused on the holdback liability of a general contractor (Louis W. Bray Construction Limited - LWB) to a union trust fund (Local 93) for work performed by a sub-contractor (F & H Concrete Forming).

The court determined that the sub-contract was a stipulated price contract, not a labour-only contract, and that LWB's own payment certifications were the most reliable evidence of the value of completed work.

The basic holdback liability of LWB was found to be $110,827.66.

The court rejected LWB's argument for a lower holdback amount and Local 93's claim for notice holdback, finding that any funds otherwise due to F & H were subject to setoff for completion and remedial costs incurred by LWB.

The validity and quantum of the liens were deferred for a separate summary procedure.

The Bondfield Group, a major construction company, sought CCAA protection due to insolvency, over $1 billion in active contracts, and over 200 lawsuits.

The application was unopposed and resulted from extensive stakeholder negotiations.

The court granted an initial order for CCAA protection, including a stay of proceedings, approval of a tailored $8 million Debtor-in-Possession (DIP) facility funded by Zurich Insurance, an Administration Charge for professional fees, and a Directors' Charge for $3 million (excluding John Aquino).

The court emphasized the public interest in completing critical infrastructure projects and the preference for CCAA over receivership to preserve enterprise value.

This endorsement addresses three issues following earlier Reasons for Decision: the appointment of KSV Advisory as interim receiver, Deltro's request to reargue its position on repudiation of a Letter of Intent (LOI), and Deltro's request to introduce new affidavit evidence.

The court appointed KSV as receiver, finding no conflict of interest.

Deltro's motion to reargue the repudiation issue was dismissed based on the functus officio principle, as the argument was previously available and no miscarriage of justice was demonstrated.

Similarly, Deltro's motion to introduce new affidavit evidence was dismissed, as the evidence could have been obtained with reasonable diligence and did not meet the high threshold for reopening a case to avoid a miscarriage of justice.

The applicant sought a declaration that the respondent was indebted to it for $2,000,000 USD advanced for a solar project in Barbados, and the appointment of a receiver.

The respondent failed to obtain the required zoning approval within the stipulated 12-month period and repudiated the agreements.

The court found that the respondent was obliged to repay the funds and rejected its claim for equitable set-off based on a separate project in the Dominican Republic.

The court granted judgment for $2,000,000 and ordered the appointment of a receiver, subject to a 30-day grace period for repayment.

The defendants brought a motion to compel the plaintiff to deliver a further and better affidavit of documents, arguing that the plaintiff's initial affidavit was incomplete and missing key documents related to pre-contractual agreements, contract terms, and the quality and functionality of materials supplied.

The plaintiff contended that the documents were irrelevant or already in the defendants' possession.

The court partially granted the motion, ordering the plaintiff to produce specific communications and documents related to the materials' condition, particularly those already exchanged between the parties.

However, the court dismissed requests deemed overly broad, irrelevant to the pleadings, or more appropriate for exploration during examinations for discovery, such as documents concerning the plaintiff's general manufacturing processes or experience.

The appellant, Deltro Electric Ltd., appealed a decision of the Electrical Safety Authority Review Panel confirming the application of a 'Wattage Based' inspection fee to its solar farm installations.

The appellant argued that the fee was invalidly enacted due to procedural defects, that certain projects were exempt from the Electrical Safety Code, and that the use of MC4 connectors did not constitute an electrical installation requiring inspection.

The Divisional Court applied a reasonableness standard of review and dismissed the appeal, finding that the ESA had cured any initial procedural defects by the time the fees were applied, that the projects required ESA connection authorizations under the Distribution System Code, and that connecting PV panels with MC4 connectors constituted work on an electrical installation subject to inspection.

The respondent moved to quash an appeal from the dismissal of a motion for an interlocutory injunction.

The Court of Appeal granted the motion to quash, finding that the order dismissing the interlocutory injunction was interlocutory in nature and therefore outside the jurisdiction of the appellate court.

The court held that the characterization of an order as final or interlocutory depends on its legal nature rather than its practical effect.

The court also rejected the appellants' concern that the motion judge's reasons conclusively determined the issue of confidentiality, noting that the issue remained open for trial.

The moving party brought a motion to quash an appeal of an order dismissing a motion to discharge a construction lien.

The moving party argued that the order was interlocutory and therefore unappealable under s. 71(3) of the Construction Lien Act.

The Divisional Court agreed, finding that the dismissal of the motion to discharge the lien did not finally dispose of the lien's validity, as the moving party would still have to prove the lien at trial.

The motion to quash was granted and the appeal was dismissed for want of jurisdiction.

Following the dismissal of a motion brought by the defendant and a lien claimant to declare the plaintiff's construction lien expired, the court determined the costs payable to the successful plaintiff.

The plaintiff sought substantial indemnity costs of over $80,000, citing an unaccepted offer to settle and the importance of the motion.

The court found the offer did not comply with Rule 49 and awarded partial indemnity costs.

Applying the principle of proportionality and considering the factors in Rule 57.01, the court fixed costs at $22,000 inclusive of disbursements and HST.

The defendants Laari Construction Ltd. and SMS Rents brought a motion seeking a declaration that the plaintiff Carpenters Union's construction lien had expired due to non-compliance with Section 34(5) of the Construction Lien Act.

The defendants argued that the lien was improperly registered because it did not contain the names and addresses of the individual Carpenters Union members who performed the work.

The Carpenters Union contended that naming the trustee as agent for affected members was sufficient, especially given the practical difficulties in identifying individual workers and their specific entitlements at the time of registration.

The court found that the Carpenters Union had sufficiently identified the lien claimants by naming the trustee as agent for the affected members and complied with Section 34(5) of the Act.

Consequently, the motion brought by Laari and SMS Rents was dismissed.

The appellant appealed a Small Claims Court decision dismissing its action for breach of contract against the respondent paralegal.

The appellant claimed the parties had reached a verbal settlement and release, which the respondent allegedly breached by initiating a claim with the CRA for insurable and pensionable earnings.

The Divisional Court found no palpable and overriding error in the trial judge's conclusion that there was no binding verbal agreement and release.

The appeal was dismissed.

In three related securities class action appeals, the court reconsidered whether a statutory secondary-market misrepresentation claim under s. 138.3 of the Securities Act is time-barred unless leave is obtained within the s. 138.14 limitation period.

The court overruled Timminco and held that, for purposes of s. 28 of the Class Proceedings Act, 1992, the statutory claim is asserted when the representative plaintiff pleads the statutory cause of action, the supporting facts, and an intention to seek leave within a timely commenced class proceeding.

The court also upheld the motion judge's interpretation of the s. 138.8 leave standard as screening out hopeless claims, while holding that the Green certification decision erred in failing to consider certifying common negligent misrepresentation issues other than reliance.

The plaintiffs' appeal in Green was allowed in part and the defendants' appeals in Silver and Celestica were dismissed.

The plaintiff brought a motion to strike portions of the defendants’ statement of defence and counterclaim under Rules 21.01(3) and 25.11 of the Rules of Civil Procedure, or alternatively to compel further particulars.

The dispute arose from a joint venture involving educational and consulting seminars and real estate marketing.

The court held that the pleadings disclosed sufficient material facts and did not meet the high threshold required to strike a defence or counterclaim as scandalous, frivolous, vexatious, or an abuse of process.

The court further found that the additional details sought by the plaintiff were evidentiary in nature and more appropriately addressed during examinations for discovery.

The motion was therefore dismissed in its entirety, though the plaintiff was granted additional time to deliver its reply.