Nadia Janet Authier

At a case conference, the court considered whether three related actions arising from a construction project should be heard one after another and proceed on a common timetable.

The actions involved claims for construction management services, oppression remedies, and consulting services, with overlapping allegations of delay and cost overruns.

The court ordered the actions to proceed together under Rule 6.01(1), finding they shared common questions of fact and law, and that separate proceedings risked inconsistent findings.

An alternative request to sever counterclaims under Rule 6.1.01 was dismissed.

The plaintiff brought a motion to compel the production of documents over which the defendants claimed common interest privilege, a joint defence tolling agreement, and answers to refusals.

The court found that the defendants failed to establish the underlying solicitor-client privilege necessary for common interest privilege, as the communications were shared with third parties and there was no evidence they entailed seeking or providing legal advice.

The court also ordered the production of the joint defence tolling agreement, finding it altered the litigation landscape.

The plaintiff's motion was granted.

This was a costs endorsement following the plaintiff's complete success in resisting a motion to dismiss the action for delay.

The court held the respondent plaintiff was entitled to costs on a partial indemnity scale, noting the action had been trial ready since 2019 and subsequent delay was not attributable to the plaintiff.

After reviewing the parties' bills of costs, hourly rates, and time dockets, and treating the matter as one of average complexity requiring considerable care and organization, the court fixed costs at $18,500 inclusive of disbursements and HST.

The court also remarked that the motion's costs could have been avoided had the matter proceeded to trial.

The defendant municipality brought a motion under Rule 24.01 to dismiss the plaintiff's action for delay.

The action, concerning a municipal sewer construction project, had been set down for trial in 2019 following a consent timetable order.

Subsequent delays were due to institutional factors and a consented adjournment, not the plaintiff's conduct.

Applying the principle that only delay subsequent to a consent order requires explanation, the court found the plaintiff had complied with the timetable and dismissed the motion, ordering the matter to be placed on the trial list.

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 applicant condominium corporation sought relief under sections 113 and 135 of the Condominium Act, alleging that the respondent declarant failed to adequately disclose the provisions of a Shared Amenities Agreement (SAA) and that the SAA's operation was oppressive.

The court found that while the declarant failed to disclose that future phases of the development would not proceed, the applicant did not prove this non-disclosure produced an oppressive or unconscionably prejudicial result.

The court dismissed the oppression claims, noting the applicant had withheld its share of expenses for over five years and should utilize the SAA's arbitration mechanism to resolve its operational disputes.

The moving party brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent fixed at $2,898.45.

The applicant condominium corporation brought a motion to compel the respondent developer to answer questions refused during the cross-examination of a deponent on an affidavit.

The court dismissed the motion, finding that the applicant failed to provide a proper refusals chart connecting the questions to the pleadings or affidavit as required by Rule 37.10(10)(a)(i).

Furthermore, the court held that the questions asked were overly broad, akin to an examination for discovery, and improperly sought information regarding shared amenity expenses that had already been ordered to be determined by arbitration.

The moving parties brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion, finding that the order as issued and entered was not a final order.

Costs of $2,500 were awarded to the responding party.

The moving party, a residential property owner, brought a motion under section 47 of the Construction Lien Act to discharge two construction liens registered against her property by a subcontractor and an equipment rental company.

The moving party argued the liens were out of time under the 45-day preservation deadline of the old Construction Lien Act.

The court dismissed the motion, finding triable issues regarding whether the old Act or the new Construction Act (with a 60-day deadline) applied, and when the lien claimants last supplied services and materials to the improvement.

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.

The applicant condominium corporation appealed an arbitrator's preliminary ruling that he had jurisdiction to determine whether the respondents' conduct was oppressive under s. 135 of the Condominium Act.

The applicant argued that oppression claims must be brought before the Superior Court of Justice and cannot be arbitrated.

The court dismissed the appeal, finding that the arbitrator was correct in concluding that s. 135 does not oust an arbitrator's jurisdiction to consider oppressive conduct if the dispute falls within the scope of a valid arbitration agreement.

The plaintiff subcontractor sought payment from the owner's holdback funds after the general contractor failed to pay for work on a restaurant construction project.

The court determined that the contract between the owner and general contractor was not a fixed-price contract but rather a costs-plus arrangement, meaning the owner's 10% holdback obligation was calculated based on the total actual costs incurred.

The court also found the owner was not liable for a further notice holdback because it did not receive written notice of the liens in the prescribed form.

Finally, the court interpreted trust agreements between the owner and other subcontractors who had discharged their liens, awarding them payments from the trust funds based on the specific terms of their respective agreements.

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.