Neil S. 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 appellant appealed a trial judge's finding that she was an independent contractor rather than a dependent contractor.

The appellant conceded the trial judge used the correct legal test from McKee v. Reid’s Heritage Homes Ltd., but argued he erred in its application.

The Divisional Court found that the trial judge properly considered the factors of economic dependency, exclusivity, and permanency, and that his findings were open to him on the evidence.

The appeal was dismissed with costs fixed at $8,000.

The appellant filed a notice of appeal seeking to set aside a decision of the Superior Court of Justice.

The lower court had issued five separate judgments in five different actions that were heard together but not consolidated.

The notice of appeal did not reflect the style of any of the five judgments, and no appeal from any individual judgment fell within the monetary jurisdiction of the Court of Appeal.

The court found it lacked jurisdiction to consolidate matters resulting in five separate judgments and transferred the matter to the Divisional Court, which possessed the appropriate monetary jurisdiction.

The plaintiff, Deborah Fisher, brought a summary trial action against Group Five Inc. and Thom Hirtz for wrongful dismissal.

The primary issue was whether Fisher was an employee, dependent contractor, or independent contractor.

The court found Fisher to be an independent contractor, dismissing her claim for wrongful dismissal damages but granting her an uncontested claim for unpaid work.

The court also provided a hypothetical assessment of notice period and mitigation had she been found an employee or dependent contractor.

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 judgment on two promissory notes arising from advances totalling $100,000.

The defendant admitted receiving the funds but argued they were an investment tied to the outcome of his dispute with the tax authorities and not yet payable.

The court held the promissory notes, drafted by the defendant's accountant and signed by the defendant, were the best evidence of the parties' agreement and established a promise to repay within 24 months.

Judgment was granted for $99,500, together with partial indemnity costs and pre-judgment interest at the default statutory rate after the initial two-year interest-free period.

The applicants brought a contempt motion alleging the respondent failed to comply with a Licence Appeal Tribunal order requiring investigation and repair of water penetration in two townhouses.

Applying the civil contempt test and the criminal standard of proof, the court held that although the order was clear, the evidence did not establish deliberate and wilful disobedience beyond a reasonable doubt.

The respondent had retained engineering assistance, conducted multiple inspections and tests including a blower door test, performed repairs, and proposed further waterproofing investigations.

The contempt motion was dismissed, but the court made additional supervisory orders to facilitate further investigation and repairs in order to give effect to the Tribunal order.

The appellants appealed a motion judge's declaration that a condominium corporation is a homeowner for the purpose of the warranty provisions of the Ontario New Home Warranties Plan Act.

The appellants argued that the definitions of 'home' and 'owner' in section 1 of the Act do not apply to a condominium corporation.

The Court of Appeal dismissed the appeal, finding that section 15(a) of the Act clearly deems a condominium corporation to be the owner of the common elements for the purposes of the warranty provisions.

The defendants brought a motion for summary judgment seeking dismissal of a claim by a warranty administrator to recover amounts paid from a statutory guarantee fund for condominium common element defects.

The motion raised issues of statutory interpretation under the Ontario New Home Warranties Plan Act concerning whether a condominium corporation is entitled to enforce warranty rights relating to common elements.

The court held that the statute deems a condominium corporation to be the owner of common elements for warranty purposes and therefore entitled to enforce such warranties.

Alternatively, the warranty administrator was entitled to pursue recovery through statutory subrogation after paying claims from the guarantee fund.

The defendants’ motion was dismissed and the indemnitor was declared personally liable for any deficiency once the amount is quantified.

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.

Following an appeal concerning a provincial offence, both parties sought costs.

The Court of Appeal declined to award costs to either party.

The court noted that under the Provincial Offences Act, the general rule is that costs are not awarded in provincial offence appeals.

Furthermore, the appeal raised a novel issue of public importance regarding the interpretation of 'occupier', making a costs award inappropriate.

The appellant, a leaseholder of a parcel within a large private property owned by a corporation, was charged with driving an off-road vehicle in the common area without a helmet, contrary to the Off-Road Vehicles Act.

He argued he was exempt from the helmet requirement because he was an 'occupier' of the common area.

The Court of Appeal held that the appellant was not an occupier of the common area, as he did not have physical possession, responsibility for its condition, or control over who could enter it.

The appeal was dismissed and the conviction upheld.

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.

The appellant subcontractor registered a construction lien after not being paid.

The respondent mortgagee posted security to vacate the liens.

The property was sold, but proceeds were insufficient to pay the mortgages.

The appellant argued the posted security should cover the full amount owed by the owner to the general contractor, while the respondent argued it was limited to the 10 percent statutory holdback.

The Divisional Court dismissed the appeal, holding that under section 78(2) of the Construction Lien Act, the mortgagee has priority over all but the basic holdback, and section 44(6) prevents the notice holdback from extending to the posted security.

A priority dispute arose between a building mortgagee and construction lien claimants over funds paid into court to vacate liens.

The plaintiff lien claimant argued the priority extended to the full amount owed by the owner to the general contractor.

The mortgagee argued priority was limited to the 10 percent statutory holdback.

The court held that paying money into court to vacate a lien does not alter the priority scheme under the Construction Lien Act, and the lien claimants' priority over the mortgagee was limited to the statutory holdback amount.

The appellant appealed a Licence Appeal Tribunal decision dismissing his claim against Tarion Warranty Corporation for second-year warranty construction deficiencies.

The appellant argued he was denied a fair hearing due to the Tribunal Member's bias and erroneous evidentiary rulings, including restricting his expert's testimony.

The Divisional Court found no reasonable apprehension of bias and held that the Member properly exercised discretion in limiting the expert's evidence regarding Ontario Building Code standards.

The appeal was dismissed.

The appellant purchaser appealed a decision finding that a real estate transaction was for a block parcel of land rather than on a square foot basis.

The purchaser argued that the real estate agent misrepresented the land size.

The Divisional Court dismissed the appeal, finding that the purchaser was provided a site plan with precise measurements prior to closing and could not have been misled.

Furthermore, the Agreement of Purchase and Sale contained an entire agreement clause, and the purchaser did not make square footage a term of the agreement.

The appellants appealed an order finding that a debt to Kroll had been established and that the bankruptcy petitions were not filed for an improper purpose.

The Court of Appeal dismissed the appeal, finding that there was evidence to support the trial judge's findings and no basis to interfere.