Paul Guaragna

The defendants brought a motion for leave to deliver two supplementary affidavits after cross-examinations had taken place, in the context of a plaintiffs' motion for a certificate of pending litigation.

The court applied the four-part test for granting leave under Rule 39.02(2), considering relevance, responsiveness to cross-examination, potential prejudice, and explanation for delay.

The court found the evidence relevant and responsive, no non-compensable prejudice, and accepted the explanation for delay, noting that some documents were already in the opposing party's possession.

The motion was granted, and the plaintiffs were ordered to pay costs.

Following a successful motion in a construction lien action to refer the matter to a master, the plaintiff sought costs on a substantial indemnity basis or alternatively on a partial indemnity basis.

The defendant argued that a reduced costs award was appropriate and disputed the plaintiff’s claimed amounts.

The court held that substantial indemnity costs were not justified, noting that the defendant’s conduct in seeking an adjournment due to a religious holiday was not reprehensible and that the plaintiff’s settlement offer was not bettered by the motion result.

Considering potential duplication of legal work and all surrounding circumstances, the court awarded a reduced lump sum costs amount.

The plaintiff brought a motion seeking an order referring a construction lien action to a master for trial under s. 58(1)(a) of the Construction Lien Act.

The action involved a multi‑million dollar lien claim for construction services and a counterclaim alleging delay damages, breach of contract, and damages for registering a grossly excessive lien.

The defendant argued that a referral required evidence of consent or complexity under Rule 54.02 of the Rules of Civil Procedure and that the issues were too complex for a master.

The court held that the statute grants broad discretion to refer construction lien actions to a master and that the historical practice and statutory objectives favour such referrals.

Finding no reason why the objectives of the Act would not be served, the court granted the motion.

The plaintiff, operating as Neptun Light, registered a construction lien claiming entitlement to $147,776.60 owed by the defendant contractor for the supply of lighting fixtures.

An added party, Neptun Distributors, also claimed entitlement to the funds, asserting it was the true contracting party.

The court held a trial of an issue to determine who contracted with the defendant.

Applying an objective standard for contract formation, the court found that the contract was formed between the defendant and Neptun Distributors, and that the plaintiff acted as an agent for Neptun Distributors.

The court directed that the funds be paid to Neptun Distributors.