Michael Farrell Cooper

The appellant owner appealed a motion judge's order directing the release of holdback funds to subcontractors under the Construction Act.

The appellant argued the motion judge erred in calculating the minimum holdback and in ordering payments without a formal summary judgment motion.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the law regarding basic holdback obligations and set-off, and properly utilized the summary procedure under s. 67 of the Act to expedite payment to subcontractors.

This decision addresses motions in three consolidated construction lien actions.

Sutton Forming Inc. sought a declaration on Homes by DeSantis (Lake) Inc.'s minimum holdback obligation under the Construction Lien Act and an order for payment from it.

The court clarified that the holdback is calculated based on the contract price for services actually supplied, not amounts paid, and rejected the owner's objections regarding certificate accuracy and set-off for deficiencies.

The court granted leave for the motion, declared the minimum holdback, and ordered specific payments to Sutton and its sub-subcontractors from the holdback.

The plaintiff landlord sought double damages under sections 48 and 50 of the Commercial Tenancies Act against the tenant corporation and its principals for allegedly fraudulently or clandestinely removing goods to prevent distress for rent arrears.

The court found that the bulk of the goods were removed before rent arrears accrued and that the removal was not clandestine or fraudulent.

The claims against the individual defendants and the claim for double damages against the corporate tenant were dismissed.

The corporate tenant was found liable for damages for breach of lease due to unpaid rent.

The defendant director brought a motion for summary judgment to dismiss the plaintiff's action against him in his personal capacity.

The plaintiff alleged the director should be personally liable for inducing breach of contract, deceit, and other torts, arguing the corporate veil should be pierced due to the director changing corporations mid-project for personal reasons.

The court dismissed the defendant's request to file a late supplementary affidavit.

The court also dismissed the motion for summary judgment, finding that a trial was required to determine the director's intent behind the corporate restructuring and billing practices, and whether his actions constituted a separate tort or improper conduct warranting piercing the corporate veil.

The plaintiff sued multiple defendants for damages arising from the termination of a commercial sublease for a race shop.

Two defendants, who managed the plaintiff's race car under a separate services agreement, moved for summary judgment to dismiss the claims against them.

The court found that the moving parties were not parties to the sublease and had no obligation under the services agreement to obtain an occupancy permit for the premises.

The court also dismissed the claims for negligent misrepresentation, intentional interference with economic relations, and trespass due to a lack of evidence.

The motion for summary judgment was granted, and the action against the moving parties was dismissed.

The defendants successfully resisted a portion of the plaintiff's motion for summary judgment regarding a fraudulent conveyance claim.

The successful defendant sought costs on a substantial indemnity basis, relying on an offer to settle that reflected the procedural result but contained no financial proposal.

The plaintiff argued for costs in the cause or a reduced partial indemnity award.

The court awarded the defendant costs on a partial indemnity basis, fixed at $7,500 inclusive of disbursements and taxes.

The plaintiff bank brought a motion for summary judgment against the defendants for debts owed on guarantees and to set aside a property transfer as a fraudulent conveyance.

The defendants acknowledged the debt but opposed summary judgment on the fraudulent conveyance claim, arguing the transfer to the spouse was done for estate planning and financing purposes following a severe cancer diagnosis.

The court granted summary judgment for the debt but dismissed the motion regarding the fraudulent conveyance, finding that a trial was necessary to properly assess credibility and intent.

The applicant was hired as a receptionist on a one-year contract to cover a pregnancy leave.

After working three shifts, she informed a co-worker that she was pregnant and was terminated the following morning.

The respondent denied knowledge of the pregnancy and claimed the termination was due to the applicant questioning her duties and work hours.

The Tribunal found the respondent's explanation lacked credibility, given the timing of the termination and the absence of any prior performance concerns.

The Tribunal concluded that the applicant's pregnancy was a factor in her termination, violating section 5 of the Human Rights Code.

The respondent was ordered to pay $15,000 for injury to dignity, feelings, and self-respect, and to develop a comprehensive human rights policy.

The applicant filed a human rights application alleging sex discrimination and sexual solicitation.

She subsequently commenced a civil action in the Superior Court of Justice encompassing the same allegations and seeking damages under the Human Rights Code.

The Tribunal held a preliminary hearing to determine if the application was barred by section 34(11) of the Code.

The Tribunal found that section 34(11) applies even when the civil action is commenced after the Tribunal application, and that the Tribunal has no discretion to stay rather than dismiss the application in these circumstances.

The application was dismissed.

The appellants' solicitor was removed from the record, and the individual behind the appellant corporation failed to appear for the hearing despite being aware of the date.

Consequently, the Court of Appeal dismissed the appeal as abandoned and awarded costs of $8,641 to the respondent.

Following a successful summary judgment motion enforcing a settlement agreement in an estate dispute, the moving party sought costs.

The court found that the costs submissions addressed a broader range of issues relating to the contested administration of the estate, including disputes regarding compliance with prior court orders and accounting for estate assets.

The record did not allow the court to determine which costs were properly attributable to the summary judgment motion.

The court therefore deferred determination of costs until a case conference addressing accounting issues and the overall administration of the estate.

Parties were directed to prepare to address implementation of the settlement, costs, and potential directions regarding the completion of the estate administration.

The applicant brought a motion for summary judgment seeking specific performance of a settlement agreement resolving disputes among siblings relating to estate assets, including a residential property.

The agreement contemplated the applicant purchasing the property from the estate in exchange for relinquishing other estate interests.

The responding party argued that the agreement never came into force or had become void when the closing deadline passed without completion.

The court found the agreement had been validly formed and that the responding party’s inaction and failure to cooperate in executing further documents prevented closing and constituted repudiation.

Specific performance was granted because the property was unique and damages would be inadequate.

The personal respondent requested a deferral of the human rights application pending the completion of concurrent criminal proceedings against him for sexual assault with a weapon, arising from the same alleged workplace incident.

The applicant opposed the deferral, arguing the human rights application was broader in scope.

The Tribunal granted the deferral, finding that proceeding concurrently risked inconsistent findings of fact and could jeopardize the personal respondent's Charter right to remain silent in the criminal proceeding.

The applicant's alternative request to proceed against the corporate respondent only was also denied to avoid duplicative proceedings.

The plaintiff brought a motion to certify a proposed class action for settlement purposes arising from allegations that condominium purchasers were overcharged for development charges by the developers.

The parties negotiated a settlement establishing a $578,000 fund to compensate class members, with refunds representing approximately 52–73 per cent of the disputed charges.

The court held that the certification criteria under the Class Proceedings Act, 1992 were satisfied even in the settlement context.

The court further found that the negotiated settlement was fair, reasonable, and in the best interests of the class despite a single objection seeking full restitution.

Class counsel’s contingency fee of $144,500 (25 per cent of the settlement fund) was approved as reasonable given the work performed, litigation risks, and results achieved.