N. Joan Kasozi

The moving party, a construction company, sought to transfer its appeal of a lien action dismissal order from the Court of Appeal to the Divisional Court pursuant to s. 110 of the Courts of Justice Act, or alternatively an extension of time to perfect the appeal.

The motion judge found that conflicting precedents — TRS Components and Arcamm — created genuine uncertainty over whether the appeal route under s. 71 of the Construction Act lay to the Divisional Court or the Court of Appeal.

Unable to conclude the appeal was filed in the wrong court, the motion judge declined the transfer.

The extension of time was granted given that both parties had operated under the shared mistaken assumption that the Court of Appeal lacked jurisdiction, which was attributable to the competing jurisprudence rather than inadvertence.

The appellants sought an order under s. 110 of the Courts of Justice Act to transfer their appeal from the Court of Appeal for Ontario to the Divisional Court and to extend the time for serving and filing a notice of appeal.

The appeal arose from a construction contract dispute where the respondent contractor brought a lien action under the Construction Act after the appellants refused to pay the final invoice.

The trial judge awarded damages in favour of the respondent.

The appellants' counsel had filed the notice of appeal in the wrong court.

The motion judge found that the appellants satisfied the three criteria for transfer: arguable grounds of appeal, manageable prejudice to the respondent, and expeditious action once the jurisdictional error was discovered.

The appeal was transferred to the Divisional Court with an extended deadline for filing the notice of appeal.

This decision concerns the costs of a motion regarding a construction lien.

The Honsbergers sought to discharge or reduce a lien registered by Homes by Hendriks Inc. The court previously reduced the lien but did not vacate it.

The parties could not agree on costs, so submissions were made.

The court awarded the Honsbergers $51,313.32 in costs, finding their offer to settle was reasonable and that their costs were not disproportionate.

The court declined to order costs against the principal of the plaintiff personally.

The Honsbergers moved to discharge or reduce a construction lien registered by Homes by Hendriks Inc. (HBH) against their property.

The court found that the date of last lienable work was a genuine issue requiring a trial and declined to discharge the lien.

However, the court reduced the lien amount by $145,121.47, finding that certain materials were not delivered and that a 20% management fee was not lienable.

The court clarified its jurisdiction to reduce a lien under section 35 of the Construction Act and provided guidance on the treatment of overhead and project management fees in lien claims.

The defendants brought a motion to dismiss a proposed class proceeding for delay pursuant to section 29.1 of the Class Proceedings Act, 1992.

They argued that the plaintiff had not filed a complete certification motion record or established a timetable within the first anniversary of the proceeding's commencement.

The plaintiff contended that extensive interlocutory proceedings related to a Mareva injunction, including timetables for affidavit exchange and cross-examinations, constituted "steps required to advance the proceeding." The court adopted a functional interpretation of section 29.1, finding that the injunction-related steps, which involved a deep dive into the merits and evidence relevant to certification, did indeed advance the proceeding.

Consequently, the defendants' motion to dismiss for delay was dismissed.

Stewart Title Guaranty Company brought a motion for partial summary judgment to dismiss the claim of its policyholder, Farina Nazir, and the crossclaim of 2212478 Ontario Inc. The court dismissed the motion, finding that the issues raised could not be readily bifurcated from the main action and presented a serious prospect of inconsistent findings of fact and mixed fact and law.

The judge determined that a just adjudication required a complete understanding of the allegedly fraudulent transactions, which had not yet been fully discovered.

The court emphasized that partial summary judgment is a rare procedure, reserved for the clearest of cases, and was not appropriate here due to the risks of delay, expense, inefficiency, and inconsistent findings.

The action was ordered to proceed to trial expeditiously.

This is a costs endorsement following the dismissal of a motion for reconsideration.

The Court of Appeal for Ontario awarded costs of the motion for reconsideration on a partial indemnity basis in the amount of $2,389.95, inclusive of disbursements and applicable taxes, payable by 6044402 NB Ltd. to Anouk Benzacar.

6044402 NB Ltd. ("604") brought a motion to the Court of Appeal for reconsideration of a previous decision (Benzacar v. Terk, 2023 ONCA 773) concerning its obligations in a garnishment proceeding. 604 sought to recalculate the amount payable to the sheriff, arguing for a lower sum based on new mathematical arguments.

The Court dismissed the motion, finding no arguable merit in the request, that it was an attempt to reargue matters already in issue during the original appeal, and that the interests of finality strongly favoured rejection, especially given 604's unsuccessful application for leave to appeal to the Supreme Court of Canada.

The appellants challenged the constitutional validity of the Tamil Genocide Education Week Act, 2021, arguing it was ultra vires Ontario and infringed their rights to free expression and equality under the Charter.

The Court of Appeal upheld the Act, finding its dominant purpose was to affirm and commemorate the Tamil-Ontarian community's experience, which falls within Ontario's power over local matters under s. 92(16) of the Constitution Act, 1867.

The Court also dismissed the Charter claims, concluding the Act does not suppress expression or draw a discriminatory distinction against Sinhala-Buddhists.

The defendants brought a motion to set aside a Mareva injunction freezing their cryptocurrency assets, which was initially granted without notice in a proposed class action alleging fraud and fraudulent misrepresentation in the sale of non-fungible tokens (NFTs).

The court found that the plaintiff had made full and frank disclosure and met the test to continue the injunction against the corporate defendants and one individual defendant, citing a strong prima facie case of fraudulent misrepresentation and a serious risk of asset dissipation.

The injunction was set aside for one individual defendant due to insufficient evidence of personal involvement.

The court also exercised its discretion to waive the undertaking for damages for the representative plaintiff, recognizing the public policy benefits of class actions.

The appellant, Anouk Benzacar, appealed a motion judge's decision regarding the enforcement of a judgment debt against her former spouse, Ira Terk, through garnishment of debts owed by his associated corporations, 6044402 NB Ltd. and 4106971 Canada Inc. The motion judge had found the garnishee statements filed by the corporations, prepared by Terk, to be deficient but not null and void, thus limiting the garnishment.

The Court of Appeal found that 6044402 NB Ltd.'s garnishee statement was materially false and lacked reasonable justification, rendering it equivalent to no statement at all under Rule 60.08(17) of the Rules of Civil Procedure.

This entitled the appellant to an order against 6044402 NB Ltd. for the full amount stated in the notice of garnishment.

The appeal was allowed, and the order below was varied accordingly.

The defendants brought a motion for security for costs against the plaintiff, a single-purpose corporation formed to build a commercial dam.

The plaintiff's project failed after delays in obtaining location approval and the subsequent termination of its feed-in tariff contract.

The court found good reason to believe the plaintiff had insufficient assets to pay costs and that the plaintiff failed to show a good chance of success on the merits to avoid the order.

The court ordered the plaintiff to post security for costs in stages.

Following the approval of a Plan of Arrangement under the Canada Business Corporations Act, the successful applicant sought costs against the objecting creditors.

The objectors argued the applicant was disentitled to costs for failing to request them initially and that the quantum sought was excessive.

The court rejected the disentitlement argument, finding the objectors had notice that costs would be addressed in writing.

The court awarded $100,000 in costs, reducing the requested amount for proportionality, and ordered the costs payable jointly and severally by the objectors as they had pursued a common strategy.

The applicants, representing members of Ontario's Sinhalese diaspora, brought applications challenging the constitutionality of the Tamil Genocide Education Week Act, 2021.

They argued the Act was ultra vires the province and violated their rights under sections 2(b) and 15 of the Charter.

The Superior Court of Justice dismissed the applications, finding that the Act is in pith and substance related to education, which falls within provincial jurisdiction.

The court further held that the Act does not restrict freedom of expression, nor does it create a discriminatory distinction based on enumerated or analogous grounds.

This appeal concerned a failed residential property transaction due to substantial water damage occurring shortly before closing.

The purchasers (respondents) sued the vendors (appellants) for breach of the agreement of purchase and sale (APS), seeking return of their deposit and damages.

The vendors counterclaimed, alleging repudiation by the purchasers.

Both parties moved for summary judgment.

The motion judge found in favour of the purchasers, ruling that the damage was 'substantial' under s. 18 of the APS, entitling the purchasers to terminate, and that the vendors had not acted in good faith.

The vendors appealed, arguing procedural unfairness regarding the pleading of s. 18, errors in factual findings, and incorrect damages calculation.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings on s. 18 and good faith, but reduced the damages awarded by the cost of an engineering report.

This endorsement addresses motions by the Tamil Rights Group (TRG) and the Tamil Coalition (National Council of Canadian Tamils, Canadian Tamil Academy, Canadian Tamil Youth Alliance) to intervene as parties or friends of the court in two joined applications.

The original applicants are challenging the constitutionality of the Tamil Genocide Education Week Act, alleging it is ultra vires and violates Charter rights.

The court granted intervener status as parties to TRG and the Tamil Coalition, finding their contributions useful for a balanced factual record, particularly given the applicants' factual assertions about the Act's basis.

The court imposed specific limitations on the interveners' participation to avoid undue delay or prejudice.

The plaintiff was successful in defending a motion to stay the action brought by the defendants on the basis of jurisdiction simpliciter and forum non conveniens.

The parties could not agree on costs.

The plaintiff sought partial indemnity costs of $16,533.44 plus $1,800.94 for costs submissions.

The defendants argued for no costs or a maximum of $10,023.92.

The court rejected the defendants' argument for no costs, adjusted the plaintiff's counsel's partial indemnity rate to 60% of the full indemnity rate, and awarded the plaintiff all-inclusive costs of $12,000.00.

Following a successful motion for summary judgment, the plaintiffs sought costs on a substantial indemnity basis relying on a Rule 49 offer to settle.

The defendants argued no costs should be awarded and objected to duplicative billing.

The court found the plaintiffs were entitled to substantial indemnity costs from the date of their offer but reduced the quantum to account for unnecessary duplication, fixing costs at $23,000 inclusive of disbursements and HST.

The plaintiff commenced an action in Ontario for wrongful dismissal and unpaid wages against the corporate defendants and their director.

The defendants, based in British Columbia, brought a motion to stay the action, arguing that the Ontario court lacked jurisdiction simpliciter or, alternatively, that British Columbia was the more appropriate forum (forum non conveniens).

The court dismissed the motion, finding that it had jurisdiction because the employment contract was formed in Ontario, where the plaintiff worked exclusively.

The court further held that the defendants failed to demonstrate that British Columbia was a clearly more appropriate forum, noting that the plaintiff's choice of forum was fair and efficient.

The plaintiffs (purchasers) and defendants (vendors) entered into an Agreement of Purchase and Sale for a condominium.

Prior to closing, the vendor's agent caused extensive water damage to the property while replacing plumbing.

The purchasers refused to close without a substantial holdback to assess and repair the unknown extent of the damage, which the vendor rejected.

Both parties brought motions for summary judgment.

The court found that the water damage was substantial, the purchasers acted reasonably and in good faith, and the vendor failed to act in good faith by initially refusing an independent inspection.

The purchasers' cross-motion for summary judgment was granted, the agreement was validly terminated, the deposit was ordered returned, and damages for additional living expenses were awarded.