Nadia Janet Authier

The court considered whether a construction lien action was properly set down for trial within the two-year period required by section 37(1) of the Construction Act, despite the use of the wrong court file number and style of cause in the trial record.

The defendant, MP Lundy Construction Inc., sought a declaration that the lien had expired and the return of security.

The plaintiff, KE Electrical Ltd., cross-moved to amend the court file number nunc pro tunc.

The court found the error to be an irregularity curable under Rule 2.01 of the Rules of Civil Procedure, relying on the Court of Appeal’s reasoning in Foran.

The defendant’s motion was dismissed and the plaintiff’s cross-motion was granted.

The Court of Appeal for Ontario dismissed an appeal by S.D.M.O. Industries (Kohler-SDMO) and Kohler Co., who sought to stay proceedings on the basis of lack of jurisdiction or a forum selection clause favoring a French court.

The court held that Ontario had jurisdiction, the forum selection clause was not proven to be valid or applicable, and the motion judge made no reviewable error.

The appeal was dismissed with costs.

This costs endorsement follows the dismissal of an appeal by the Defendants, David Wu and Opus Fitness Investment Inc., against a decision of Associate Justice Perron.

The Defendants argued that the Plaintiff, Ottawa Credit Exchange Limited, increased costs by raising a new argument on appeal.

The Court disagreed, finding the Plaintiff’s argument was responsive and that the Defendants themselves increased costs by raising an unfounded jurisdictional argument.

The Court awarded costs to the Plaintiff in the amount of $4,881.60, inclusive of HST.

The court granted a motion to remove D. Kenneth Gibson and Gibson LLP as counsel of record for Wildpine Residence Inc. in a construction lien proceeding, due to Mr. Gibson's role as a key material witness at trial.

The decision addresses the conflict between a lawyer's role as advocate and as witness, and the need to preserve the integrity of the trial process.

The court found that the interests of justice required the removal of Mr. Gibson and his firm, and ordered Wildpine Residence Inc. to appoint alternative counsel within 60 days.

The plaintiffs brought an action for damages arising from catastrophic failures of emergency generators at a hospital.

Defendants SDMO and Kohler moved to stay proceedings, arguing lack of jurisdiction or that Ontario was not an appropriate forum.

The court found Ontario had jurisdiction simpliciter as the torts (property damage, failure to warn, negligent misrepresentation) occurred in the province.

The court also found the forum selection clause in the contract between SDMO and GAL Power was not properly before the court and would not apply to third parties or be enforceable against GAL Power.

Finally, the court determined Ontario was the most appropriate forum, considering the location of parties, witnesses, and evidence, and the existence of related proceedings.

The motion for a stay was dismissed.

This costs endorsement addresses the "sunk/wasted" costs incurred by the respondent, Leeds Standard Condominium Corporation No. 41 (LSCC 41), in an application that was stayed pending arbitration.

The court had previously awarded $30,000 in partial indemnity costs and remained seized for any outstanding costs not covered by the arbitration.

LSCC 41 sought an additional $64,797.63, arguing minimal reuse of application materials in the arbitration.

The applicant, Tall Ships Landing Developments, contended there was significant reuse.

The court found substantial overlap in materials and allegations, rejecting LSCC 41's premise.

Applying the principle of reasonableness, the court fixed LSCC 41's additional "sunk/wasted" costs, including costs for the current submissions, at an all-inclusive amount of $15,000.

The plaintiffs sought leave to amend their statement of claim to add allegations of breach of duty of good faith and fair dealing, and to plead the doctrine of *contra proferentem*.

The court denied the amendments related to good faith and fair dealing, finding them to be unsupported legal conclusions without material facts.

However, the court granted leave to add the *contra proferentem* plea, deeming it a point of law permissible under the rules, despite its questionable value and the absence of supporting facts, and finding no non-compensable prejudice to the defendant.

The appellant, Joanne Sicotte, appealed a motion judge's decision that dismissed her summary judgment motion on a commercial mortgage guarantee and instead granted summary judgment to the respondents.

The Court of Appeal found the motion judge erred by conflating the primary debt with the guarantee obligations and misinterpreting "owing" versus "enforceable" debt.

The appeal was allowed, the lower order set aside, and summary judgment was granted in favour of the appellant against the guarantors.

Covertite Eastern Ltd., a third party, sought summary judgment to dismiss a third-party claim by GRC Architects Inc. in a construction dispute concerning persistent water infiltration in a building's roofing structure.

Covertite argued the issues were design-related, not workmanship, for which it had no responsibility.

GRC Architects Inc. contended there was evidence of Covertite's negligence and poor workmanship.

The court dismissed the motion, finding that the complex technical issues and overlapping factual disputes with the main action and another third-party claim created a significant risk of inconsistent findings, making summary judgment inappropriate and not conducive to judicial economy.

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 appellant, a condominium corporation, sought to appeal a motion judge's decision staying its action in favour of arbitration.

The respondents moved to quash the appeal on the basis that it was barred by section 7(6) of the Arbitration Act, 1991.

The Court of Appeal allowed the motion to quash, finding that the appeal was statutorily barred.

The court rejected the appellant's arguments that it was denied natural justice and that the pith and substance of its claim was an oppression remedy under the Condominium Act that could not be precluded by arbitration clauses.

The court found that the motion judge correctly applied the test for determining whether claims fell within the scope of arbitration clauses and that the arbitrator could determine its own jurisdiction.

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 defendants, Tall Ships Landing Developments Inc. and Simon Fuller, brought a motion to stay the proceeding commenced by the plaintiff, Leeds Standard Condominium Corporation No. 41, in favour of arbitration.

The plaintiff brought a cross-motion to convert a previously commenced application into an action and consolidate it.

The court granted the defendants' motion to stay, finding that the pith and substance of the dispute related to alleged non-compliance with or fairness of the Shared Facilities Agreement and Shared Amenities Agreement, which fell within the scope of the contractual dispute resolution clause requiring mediation and arbitration.

The court emphasized the strong judicial favour for enforcing arbitration agreements and the "competence-competence principle." Consequently, the plaintiff's cross-motion and the defendants' alternative motions to strike or for particulars were not addressed.

Costs were awarded to the defendants.

This decision addresses prejudgment and postjudgment interest and trial costs following a bifurcated damages trial.

The court determined that the plaintiffs' damages award of $1,083,713.26 for diminution in value and lost rental income should be reduced by $436,892.13 in insurance monies received, resulting in a net damage award of $658,054.28.

Tega's Rule 49 offer to settle for $650,000 plus prejudgment interest (totaling $693,754.79) was found to be more favourable than the plaintiffs' net recovery.

Consequently, the plaintiffs were awarded partial indemnity costs up to the date of Tega's offer (December 29, 2015), and Tega was awarded partial indemnity costs from that date forward.

The court also disallowed expert fees for one of the plaintiffs' experts whose evidence was deemed unhelpful.

The defendant, Kingdom of Saudi Arabia, brought a motion for summary judgment to dismiss a construction lien claim registered by the plaintiff, Construction Excedra Inc., against its property.

The defendant argued that the property was diplomatic premises and thus immune from attachment under the Foreign Missions and International Organizations Act and Article 22 of the Vienna Convention on Diplomatic Relations.

The plaintiff contended that the property was not immune or that state immunity had been waived.

The court found that certificates issued by the Minister of Foreign Affairs were conclusive proof of the property's diplomatic status and immunity from attachment, granting the defendant's motion and ordering the lien discharged.

The applicant, 3716724 Canada Inc., sought substantial indemnity costs against Carleton Condominium Corporation No. 375 following a successful application where the court found the respondent had unfairly disregarded the applicant's interests.

The applicant also sought costs thrown away from an adjourned hearing.

The court awarded the applicant $35,500 plus HST and disbursements, declining full substantial indemnity due to the applicant raising additional unsuccessful issues, but granting increased costs due to the respondent's unreasonable insistence on a full-time security guard despite sufficient alternative proposals.

The third parties moved for an order requiring the defendant to post security for costs of the action.

The court considered Rule 56 of the Rules of Civil Procedure, noting that the third parties met the initial onus.

The central issue was whether the defendant had a good chance of success on his third-party claim, which would make a security for costs order unjust.

The court found that the defendant had a good chance of success in establishing that one of the third parties was the controlling mind of the defendant's company, and that the third parties' actions may have contributed to the defendant's financial distress.

Consequently, the motion for security for costs was dismissed.

The moving defendants sought partial summary judgment dismissing the action against a corporate affiliate and a corporate officer in a construction dispute relating to a condominium development project.

The plaintiff alleged that the officer induced breach of contract, made misrepresentations, conspired with lenders, and that the corporate affiliate was effectively the alter ego of the contractor.

The court reviewed the amended Rule 20 summary judgment framework and the Court of Appeal’s guidance in Combined Air Mechanical Services Inc. v. Flesch, particularly the limits on a master’s authority and the requirement to determine whether a full appreciation of the evidence is possible without a trial.

Although the evidentiary record against the moving defendants was weak and the legal theories faced significant obstacles, the court held that the complex factual matrix and unresolved issues relating to the main breach of contract claim prevented a proper assessment on the record.

Summary judgment was therefore refused.