Paul Hancock

The appellant appealed the dismissal of her motion to add three individual respondents as defendants in her wrongful dismissal action, alleging they were common employers.

The motion judge found the claim against them statute-barred due to the expiration of the limitation period, as the appellant knew or ought to have known the material facts supporting her claim at the time of termination.

The Court of Appeal upheld this decision, finding no reversible error in the motion judge's application of discoverability and common employer principles, and dismissed the appeal.

This motion in a construction action concerned Koler Construction Inc.'s request for Falcon Forming Inc. to provide further particulars and supporting documentation for alleged additional costs and delays, specifically related to items in Falcon's Scott Schedule.

Koler argued that Falcon's position on the contract (labour vs. scope of work) had shifted and that previous disclosures were insufficient.

Falcon contended that its Scott Schedule adequately particularized the claim and that discoveries were complete.

The court found that Falcon's Scott Schedule did not provide full answers to the questions asked, especially given the shifting positions and the fact that the Scott Schedule was particularized after discoveries.

The court ordered Falcon to provide the requested particulars and supporting documents for the delay claims.

The appellant appealed an order granting title of a disputed strip of land to the respondent neighbour under s. 37 of the Conveyancing and Law of Property Act.

The application judge found the respondent had made lasting improvements to the land, including a retaining wall and parking pad, under the honest and reasonable belief that the land was his.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the application judge's findings of fact or exercise of discretion regarding the transfer of land and the denial of costs.

The moving party sought leave to apply for judicial review of an adjudicator's decision under the prompt payment provisions of the Construction Act.

The Divisional Court established the test for granting leave in such cases, noting that adjudicators' decisions are interim and leave should rarely be granted.

The court held that the test is analogous to the conjunctive test for leave to appeal an interlocutory order.

Finding that the moving party did not meet this high bar, the court dismissed the motion for leave with costs.

The applicant sought an order recognizing ownership of a narrow strip of land through adverse possession or, alternatively, under s. 37 of the Conveyancing and Law of Property Act due to lasting improvements made under the belief of ownership.

The respondent sought dismissal and removal of structures.

The court found insufficient evidence to establish adverse possession, as it could not reliably determine the effective boundary before 1996 renovations.

However, the court granted the applicant title to the disputed area under s. 37, finding that lasting improvements were made under an honest belief of ownership and that the balance of convenience favored the applicant retaining the land.

The respondent was entitled to compensation for the land, and the parties were encouraged to negotiate the amount.

Costs were ordered to be borne by each party.

The Court-appointed Receiver sought approval of a lien claim settlement, administrative expenses, its fees, and directions regarding the mortgagee's claim for three months' bonus interest upon default.

The Court approved the settlement, expenses, and fees.

However, the Court directed the Receiver to reject the mortgagee's claim for bonus interest, finding that the mortgage provision violated section 8 of the Interest Act by imposing a higher charge on arrears.

The Court also held that section 17 of the Mortgages Act does not apply to distributions by a court-appointed receiver.

The plaintiff contractor brought a construction lien action for unpaid invoices relating to the installation of epoxy flooring at a commercial property.

The defendant owner counterclaimed for the cost of replacing the floor, alleging the contractor installed the wrong product and left deficiencies.

The court found that the owner fundamentally breached the contract by unilaterally ordering a stop to the work and hiring a replacement contractor without giving the plaintiff an opportunity to correct deficiencies.

Although the plaintiff had installed an unspecified, inferior epoxy product, this breach was rendered immaterial by the owner's prior repudiation.

The court awarded the plaintiff its unpaid invoices and extras, subject to a quantum meruit set-off for the cost difference between the specified and installed epoxy products.

The owner's counterclaim was dismissed.

The defendants moved to discharge a construction lien and vacate the certificate of action registered by the plaintiff, Brock Contracting, arguing that the plaintiff corporation did not contract with them or supply services, and thus lacked lien rights.

The plaintiff cross-moved to amend its statement of claim to reflect its full corporate name and add Liza Zollner as a plaintiff.

The court found that lien rights must be assigned in writing under s. 73 of the Construction Act and that the corporation, being a separate legal entity, did not possess the original lien rights.

The court also determined that the error was not a minor irregularity curable under s. 6 of the Act, as it involved the wrong entity registering the lien, not merely a misnomer.

The defendants' motion to discharge the lien was granted, while the plaintiff's cross-motion to amend the statement of claim was granted by consent.

Vipond Inc. successfully moved for summary judgment and subsequently sought costs and interest.

The court determined that Bondfield Construction Company Limited and Fortis Electric Ltd. were jointly liable for partial indemnity non-motion costs, with Bondfield solely liable for substantial indemnity motion costs due to its unreasonable conduct and failure to accept a reasonable settlement offer.

The court also awarded prejudgment interest at the Courts of Justice Act rate of 0.8% and post-judgment interest at 3%, rejecting higher contractual rates due to lack of evidence.

The defendants brought a motion for summary judgment to dismiss the action, or parts thereof, primarily concerning the identity of the parties to the governing contract.

The plaintiff opposed the motion.

The court found that there was a genuine issue requiring a trial regarding which party the plaintiff had contracted with, particularly due to ambiguities in agency representation and inconsistent documentation.

The Master declined to exercise discretionary powers to resolve this issue outside of the scheduled lien trial, determining that it would be more cost-effective and proportionate to address it within the context of the full trial.

Consequently, the defendants' motion for summary judgment was dismissed.

The moving party sought an order staying the respondent's action until a costs award in favour of a former co-defendant was paid in full.

The respondent claimed impecuniosity but provided no financial disclosure to support the claim.

The court found that court orders must be enforced and that the respondent had made no voluntary effort to pay the costs award.

The court granted the motion, staying the action until the costs are paid and setting a deadline for payment, failing which the moving party may move to dismiss the claim.

The defendant owner in a construction lien action brought a motion for leave under section 56(1) of the Construction Lien Act to join an officer of the plaintiff contractor as a third party.

The proposed third party claim sought contribution and indemnity for allegedly false statutory declarations sworn by the officer.

The court dismissed the motion, finding that the proposed claims were not true claims for contribution and indemnity related to the plaintiff's lien claim, but rather separate claims for damages that resembled trust claims, which are prohibited from being joined with lien claims under section 50(2) of the Act.

A subcontractor brought a motion for summary judgment in a construction lien action seeking payment for stair construction work performed during a residential renovation.

The defendants argued that leave for summary judgment should not be granted and disputed whether work had been performed on the final date necessary to render the lien timely.

The court granted leave under s. 67(2) of the Construction Lien Act and held that uncontradicted documentary evidence established that the subcontractor’s work continued to the relevant date.

The court rejected arguments that the absence of live testimony from the worker required an adverse inference and found the lien had been registered within the statutory period.

Judgment was granted jointly and severally against the contractor and the homeowners.

The moving party sought leave to appeal to the Divisional Court from a motions judge's dismissal of an ex parte motion for a Certificate of Pending Litigation.

The moving party argued the motions judge erred in finding no fraudulent conveyance and requiring an interest in land.

The court dismissed the motion for leave to appeal, finding that because the underlying decision was ex parte, conclusory, and contrary to established law, it had no precedential value and granting leave would serve no public interest.