Michael John Wycherley Round

The plaintiff flooring contractor sued the defendant general contractor for unpaid invoices relating to the installation of a concrete urethane floor in a brewery.

The general contractor counterclaimed and brought separate actions against the flooring subcontractors and the product manufacturer, alleging the floor was negligently installed and defective.

The court found that the alleged defects were cosmetic and resulted from the general contractor's decision to substitute a cheaper flooring product without the designer's approval, as well as poor maintenance by the brewery.

The court granted the plaintiff's claim for unpaid invoices and dismissed the general contractor's counterclaim and third-party actions.

The parties in a complex construction dispute involving multiple actions and counterclaims submitted a consent Discovery Plan to the case management judge.

The court ordered that the Discovery Plan, which sets out key dates for the exchange of affidavits of documents, virtual examinations for discovery, and detailed e-discovery protocols including search terms and metadata load file requirements, applies to the proceeding.

This decision addresses four motions in consolidated construction lien actions.

Lien claimants Vestacon Limited and Plan Group Inc. sought to validate their liens against properties owned by 1302207 Ontario Limited (Peter Co.) and 364 Richmond Street West Inc. (Richmond Co.), following the bankruptcy of the tenant, Arc Productions Ltd. The court declared all three Certificates of Substantial Performance (CSPs) invalid due to premature issuance and insufficient property descriptions.

Consequently, Vestacon's lien was found to be timely, having been registered within 45 days of contract completion.

The court also affirmed the validity of Vestacon's Section 19 notices to the landlords, establishing their liability.

Furthermore, Vestacon's lien was extended to include the 364 Richmond Street West property, and leave was granted to add Richmond Co. as a defendant.

For Plan Group's lien, while the CSPs were invalid, a genuine issue for trial was found regarding the exact date of last supply, leading to the dismissal of the owners' motion to declare Plan Group's lien expired.

The plaintiff, Hugo Raposo, brought a motion for summary judgment in his wrongful dismissal action against the defendant, CA Canada Company.

The central issue was the enforceability of the termination provisions in the employment agreement and whether they displaced the common law presumption of reasonable notice.

The court found that the termination provisions in the offer letter and employment agreement were neither contradictory nor ambiguous, and effectively rebutted the presumption of common law reasonable notice.

Consequently, the plaintiff's motion for summary judgment was dismissed, though the plaintiff was awarded outstanding vacation pay.

The appellant appealed a trial judgment finding it liable for breach of contract and awarding $11 million in damages to the respondent, who had purchased the action from a bankrupt IT company.

The Court of Appeal upheld the trial judge's finding that the appellant's representative had actual authority to bind the company to the contract.

However, the Court allowed the appeal regarding damages, finding the trial judge erred by assessing damages as of the end of a five-year business plan rather than the date of the breach.

Applying a discounted cash flow analysis as of the date of breach, the Court reduced the damages award to $1.3 million.

This motion involved multiple parties in consolidated construction lien actions concerning two large-scale solar projects.

The plaintiff, Lennox Snow Fence Co. (1982) Ltd., acting as carriage counsel for several lien claimants, sought to approve Vetting Committee recommendations regarding lien quantum and timeliness, and for payment.

ABB Inc., the general contractor, brought a cross-motion to reduce the security it posted for Simpson's Fence (Chatham) Inc.'s liens and to transfer a related breach of trust action.

The court dismissed the motion to approve the Vetting Committee recommendations due to Simpson's Fence's objections and lack of consensus, and denied immediate payment to lien claimants.

However, it ordered the discharge of liens for Clarida, Mod Space, and SMS Rents, and the return of associated security.

The court also denied ABB's request to reduce security for Simpson's Fence's liens, finding genuine issues of fact requiring trial.

Common discoveries and production were ordered for all lien claimants.

The breach of trust action was transferred to Napanee to be heard after the lien claims.

Following a successful motion and the dismissal of a cross-motion for leave to bring a motion for security for costs, the court determined the appropriate costs award.

The successful party sought partial indemnity costs exceeding $10,000, while the opposing party argued for a reduced award.

The court accepted the successful party’s submissions, finding the time spent and counsel fees reasonable, including preparation and attendance time for the motion.

The court also considered additional telephone attendances required to finalize the order.

Costs were awarded on a partial indemnity basis in the amount claimed.

This endorsement corrected an earlier released decision arising from two plaintiff motions in separate construction lien actions to amend statements of claim and obtain production and discovery.

The court noted that the earlier decision inadvertently referred only to one court file, although the issues and parties were the same in both actions.

The endorsement directed that the decision also apply to the second identical court file and that an order issue accordingly.

The plaintiff subcontractor brought a motion for leave to issue an amended Statement of Claim, an order for production of documents, and examinations for discovery in a construction lien action.

The defendant ABB brought a cross-motion for leave to seek security for costs.

The court granted the plaintiff's motion for production and discovery, finding that the plaintiff's claim went beyond a typical lien action by alleging direct contractual undertakings by ABB.

The court dismissed ABB's cross-motion for security for costs, finding insufficient evidence that the plaintiff lacked assets.

Following a 31-day trial where the plaintiff was awarded $11 million in damages, the court determined the quantum of costs payable to the plaintiff.

The parties agreed that partial indemnity was the appropriate scale.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court fixed the plaintiff's partial indemnity fees at $675,000 plus HST and disbursements at $238,000 inclusive of HST.

An investor that had acquired the rights of a bankrupt Indigenous‑owned technology company sued a software corporation for breach of contract arising from a failed strategic partnership.

The plaintiff alleged the defendant committed to invest $1.5 million and provide technological support but later withdrew, causing the company’s collapse.

The court found a binding agreement was formed through oral approval and a confirming letter, and that the defendant’s internal corporate approval issues did not negate the contract.

Alleged misrepresentations regarding finances, market size, and potential investors were rejected.

Applying a modified valuation based on projected business plans and discounting for risk, the court awarded damages for the lost business opportunity.

Following a motion concerning whether a statement of claim should be amended to replace John Doe defendants with identified individuals, the court addressed the issue of costs.

The moving party sought partial indemnity costs of over $64,000 after achieving partial success in adding several individuals as defendants.

The responding parties argued that costs should be reduced because success was divided and because significant work occurred before the individuals formally opposed the motion.

The court rejected arguments that costs should be apportioned based on the number of individuals added and accepted that earlier work was intertwined with the amendment issue.

However, the court reduced the requested amount to account for delay and awarded partial indemnity costs.

The plaintiff brought a motion to amend its Statement of Claim to substitute five named individuals for 'John Doe' defendants.

The action involved allegations that the defendants improperly accessed and used the plaintiff's confidential bond trading information.

The court applied the two-part test for misnomer, focusing on whether the 'litigating finger' pointed at the proposed defendants such that they would have known they were the intended parties.

The court granted the motion for four of the individuals, finding they would have recognized they were implicated by the allegations of accessing or destroying information, but denied it for one individual whose role was not clearly implicated by the pleadings.

This endorsement determined costs arising from a security-for-costs motion and a related motion concerning transfer of an interest and continuation of the proceeding.

The court found the defendants had considerable but not complete success on the security-for-costs issue, and reduced the amount sought to account for partial success and duplication in senior-lawyer time.

For the continuation issue, the court ordered each side to bear its own costs.

Overall, the court fixed a single fair and reasonable costs award payable by the plaintiff to the defendants.

The applicant, a 50% voting shareholder in a real estate development corporation, sought an order to wind up the corporation or force a buy-out under the oppression and just and equitable winding-up provisions of the OBCA.

He argued that the corporation was a partnership in corporate guise and that his reasonable expectation was to only deal with his original partner, not the partner's children.

The court dismissed the application, finding that the corporation's operations and the applicant's governance rights were not impaired, and that the evidence did not support the existence of the claimed reasonable expectation, especially since the applicant had previously consented to the children's involvement.

The appellants appealed an order of the Divisional Court.

The Court of Appeal for Ontario dismissed the appeal as moot, with no order as to costs.

H & R Block purchased stock in bulk from Tax Time without complying with the Bulk Sales Act, instead paying the entire proceeds to secured creditors.

National Trust, an unsecured creditor, sought an accounting under s. 16(2) of the Act.

The Court of Appeal held that H & R's unilateral decision to pay certain creditors was not a proper accounting under the Act, making H & R liable to National Trust for the debt existing at the time of the bulk sale.

However, the Court allowed the appeal in part, finding H & R was not liable for the costs of subsequent litigation between National Trust and Tax Time, as those were post-sale debts.