Michael Owsiany

The plaintiff set the action down for trial and counsel attended trial scheduling court to fix a date.

The judge convened a case conference and determined that the action, commenced in 2014 regarding a construction dispute, was not ready for trial.

Interlocutory steps including undertakings, potential refusal motions, and expert reports were incomplete, and a companion action had sat dormant.

The judge struck the action from the trial list, directing counsel to return only when the matter is truly ready for trial.

The defendants brought motions to strike the plaintiffs' statement of claim under rules 21.01 and 25.11 of the Rules of Civil Procedure.

The plaintiffs, a home builder and its principal, alleged various torts and statutory breaches against Tarion Warranty Corporation, several municipalities, CTV News, and a public health authority, claiming hundreds of millions of dollars in damages.

The court found the 40-page statement of claim to be unwieldy, repetitive, and deficient in pleading the necessary material facts for the alleged causes of action.

The court struck the statement of claim in its entirety, dismissing claims based on criminal statutes, the Competition Act, the Security of Information Act, intentional interference with economic relations, discrimination, and harassment without leave to amend.

However, the court granted the plaintiffs leave to move for an order permitting them to deliver a fresh statement of claim restricted to specific causes of action, including injurious falsehood, inducing breach of contract, civil conspiracy, and negligence, provided they can properly plead the required material facts.

A developer, 375 Lakeshore Developments Inc., sought a permanent injunction to enforce releases signed by homeowners (Tong Lin, Jing Ning, and Michael Watkinson) to prevent them from pursuing warranty claims with Tarion Warranty Corporation regarding cold temperatures on the ground floor of their new townhouses.

The homeowners had accepted a $1,200 cash settlement based on the developer's representation that the issue was an inadequate heating system.

Tarion later identified the problem as a major structural defect due to insufficient insulation, with estimated repair costs of $80,000-$100,000 per unit.

The court dismissed the application, finding the releases unenforceable under s. 13(6) of the Ontario New Home Warranties Plan Act, which prohibits contracting out of statutory warranties, and also rescinded the releases on the basis of innocent misrepresentation by the developer regarding the true cause and severity of the defect.

The plaintiff, a developer, brought a motion under Rule 32.01 of the Rules of Civil Procedure to inspect and collect data from townhomes it previously built, which were subject to statutory warranty claims for heating issues.

The non-party respondent, Tarion Warranty Company, and the homeowners opposed the motion, arguing it would delay scheduled remediation work.

The court dismissed the motion, finding that while the inspection might be necessary, it would unreasonably delay the compensation and repair process for the homeowners, whose needs must take priority under consumer protection legislation.

The plaintiff developer brought a motion under Rule 32 of the Rules of Civil Procedure to inspect and conduct non-destructive testing at several townhome units where heating deficiencies were alleged.

Tarion Warranty Corporation, a non-party respondent administering statutory warranty claims, opposed the motion, arguing it would delay scheduled remedial work.

The court granted the motion, finding the inspection necessary for the proper determination of issues in the proceeding and noting that the plaintiff's proposed schedule would not interfere with Tarion's planned repairs.

The defendant brought a motion to strike various paragraphs of the plaintiff's Statement of Claim, arguing they failed to disclose material facts, constituted argument, or were prejudicial.

The court applied Rule 25.11 of the Rules of Civil Procedure, emphasizing a generous reading of pleadings.

While the defendant made concessions during the hearing, the court ultimately struck only paragraph 53 and the second sentences of paragraphs 51 and 52, finding them argumentative and conclusory.

The majority of the plaintiff's pleading, including sections detailing the Ontario New Home Warranties Plan Act and factual narrative, was upheld as proper.