Neil Abbott

The plaintiff builder sued the defendant homeowners for the unpaid hold-back on a custom home construction contract.

The homeowners counterclaimed, arguing the contract was a fixed-price agreement and that the builder negligently underestimated the 'cash allowance' items, resulting in significant cost overruns.

The court held that the cash allowances were estimates and the homeowners were responsible for the overages, noting they had signed change orders approving the extra costs.

The court dismissed the negligent misrepresentation claim for lack of evidence on the standard of care and found the homeowners' claims barred by promissory estoppel.

The builder was awarded the hold-back amount, subject to a set-off for the homeowners' costs in staining the house, which the court found was the builder's responsibility under the contract.

The bankrupt appealed a Master's order dismissing his application for discharge from bankruptcy.

The Master had found the bankrupt failed to disclose his financial affairs and met several criteria under s. 173(1) of the Bankruptcy and Insolvency Act for refusing a discharge.

On appeal, the bankrupt sought to introduce fresh evidence, claimed cross-examination by the creditor's counsel was an abuse of process, and alleged factual errors by the Master.

The Superior Court dismissed the appeal, finding the fresh evidence failed the Palmer test, the cross-examination was procedurally fair, and the Master made no palpable and overriding errors in her factual findings.

The plaintiff, Tarion Warranty Corporation, brought a subrogated claim against an unregistered corporate vendor and its sole director for amounts paid out of the guarantee fund to purchasers of a new home.

The defendants argued they were not liable because they were not registered under the Ontario New Home Warranties Plan Act, and counterclaimed that Tarion was negligent for failing to warn them of the registration requirement.

The Superior Court of Justice held that the failure to register did not relieve the corporate vendor of its mandatory warranty obligations.

The court pierced the corporate veil to hold the individual director personally liable, finding he knowingly concurred in the breach.

The counterclaim was dismissed as the defendants failed to establish any duty of care or duty of fairness owed by Tarion.

The plaintiff sought indemnity from a builder corporation and several individual investors for payments made to homeowners under the Ontario New Home Warranties Plan Act.

The claim relied on a Tarion standard-form indemnity agreement allegedly signed by the individual defendants.

The court found the individual defendants had only signed a single signature page that had been fraudulently inserted among unrelated financing documents by another defendant, and that earlier versions of the agreement submitted to the plaintiff were forgeries.

Although the defendants were careless in signing the document, the plaintiff’s own lack of diligence in accepting altered net worth statements and failing to verify the indemnitors contributed materially to the circumstances.

Balancing the competing principles from fraud and non est factum jurisprudence, the court held the defendants were not liable under the purported indemnity agreement.

The plaintiff sought indemnification for deposit refunds paid to purchasers after a registered home builder entered agreements to construct homes despite lacking a valid registration under the Ontario New Home Warranties Plan Act.

The court found the builder fundamentally breached twenty-two Agreements of Purchase and Sale by contracting without legal capacity to construct the homes.

As a result, purchasers were entitled to statutory deposit refunds under s. 14 of the Act.

The court rejected arguments that certain payments were loans rather than deposits and held that the indemnitor’s personal indemnity obligation was not reduced by a separate surety bond.

Judgment was granted for the refunded deposits, administrative fees, and statutory interest.

A creditor applied for bankruptcy orders against an individual debtor and his corporation arising from an unpaid arbitration award exceeding $465,000.

The respondents objected and argued that the creditor was attempting to seize control of a separate civil action they had commenced against a lawyer.

The court considered the requirements under ss. 42(1)(j) and 43(1) of the Bankruptcy and Insolvency Act and the principles governing acts of bankruptcy where a debtor fails to meet liabilities as they become due.

Despite the existence of only one known creditor, the court found special circumstances, including the large unpaid judgment outstanding for several years and the creditor’s unsuccessful collection efforts.

The court concluded that the debtors had ceased to meet their liabilities generally as they became due and granted the requested bankruptcy orders.