Paul H. Starkman

The defendants brought a motion under section 47 of the Construction Act to discharge the plaintiff's construction lien, vacate the certificate of action, and dismiss the action.

The motion was based on four grounds: the oral contract was prohibited by the Statute of Frauds, lack of corroboration under the Evidence Act section 13, lack of certainty in the contract's essential elements, and no claim for unjust enrichment.

The court dismissed the motion, ruling that the Construction Act is a complete code for construction liens, allowing for oral contracts as an exception to the Statute of Frauds.

It also found that the Evidence Act section 13 did not apply as the action was not against the deceased's estate, the oral contract had sufficient certainty, and the unjust enrichment claim was an alternative remedy not subject to a section 47 motion.

Costs were awarded to the plaintiff.

The defendant moved to set aside a default judgment and notice of garnishment obtained by the plaintiff.

The court granted the motion, finding that the defendant acted promptly upon learning of the judgment, provided a plausible explanation for the default due to improper service and lack of notification, and presented an arguable defence regarding defective products.

The court emphasized that the plaintiff's counsel failed to provide a courtesy copy of the claim or judgment to the defendant's retained counsel, and that the administration of justice favored a trial on the merits.

This decision concerns the costs of a motion brought by the Regional Municipality of Halton following a previous decision regarding "Wagg Orders" and the scope of disclosure.

The plaintiff sought clarification on sharing materials for a wrongful dismissal action.

The court found that the defendants' "purported consent" to the plaintiff's motion was not genuine and forced the plaintiff to proceed.

Although the plaintiff sought substantial indemnity costs, the court awarded partial indemnity costs of $9,894.76, finding the defendants' conduct, while not egregious enough for substantial indemnity, was ill-advised and necessitated the motion.

The court applied Rule 57 factors in determining the appropriate costs.

The moving party brought a motion for leave to appeal the order of the lower court judge.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $5,000 inclusive of disbursements and HST.

The Regional Municipality of Halton brought a motion seeking to amend two prior "Wagg Orders" to explicitly include a related wrongful dismissal action (the "Ohashi Wrongful Dismissal Action") within their scope for the purpose of document disclosure.

The defendants, the Ohashis, opposed the motion, arguing it was unnecessary and that declaratory relief was inappropriate.

The court, applying Rule 59.06(1) of the Rules of Civil Procedure, found that the omission of the wrongful dismissal action from the previous order was an oversight.

Consequently, the court granted the amendment, allowing Halton to produce the documents obtained under the Wagg Orders in the Ohashi Wrongful Dismissal Action, emphasizing that questions of relevance and admissibility would be determined by the trial judge.

The plaintiff successfully moved for the production of financial records related to the defendant from third-party financial institutions.

The plaintiff sought costs of the motion.

The defendant opposed the quantum but failed to file a costs outline as ordered.

The court awarded the plaintiff its costs on a partial indemnity basis in the all-inclusive sum of $28,125.92, noting the defendant's conduct in expanding the issues and the failure to file a costs outline.

The plaintiff brought a motion to compel the Attorney General of Canada to produce remaining documents from Schedule B of its supplementary affidavit of documents, challenging the AG's claims of solicitor-client and litigation privilege.

The plaintiff also sought an order that the AG's representative reattend discovery at his own expense.

The court reviewed the descriptions of the documents, including those claimed as privileged due to 'family coding' (attachments to privileged documents), and inspected several documents directly.

The court found the claims of privilege were valid and dismissed the motion for production.

The court also declined to order the representative to pay for his reattendance, as there was no finding of misconduct.

Costs of $5,000 were awarded to the AG.

The plaintiff successfully moved for the production of financial records from third-party financial institutions related to the defendants.

The plaintiff sought costs of the motion on a partial indemnity basis.

The defendants argued that costs should be left to the trial judge and contested the quantum, but failed to provide a costs outline.

The court awarded the plaintiff costs of $22,892.14 on a partial indemnity basis, noting the defendants' conduct in expanding the issues and their failure to file a costs outline.

The moving parties brought a motion for leave to appeal the order of MacNeil J. dated October 16, 2021.

The Divisional Court denied the motion for leave to appeal and awarded costs to the responding party fixed at $2,500 all inclusive.

The moving party sought leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 inclusive of disbursements and HST to the responding party.

The applicant sought to enforce a $1 million USD arbitral award obtained in China against the respondent for unpaid brake pads.

The respondent sought an adjournment of the enforcement application and an order for security for costs, while the applicant cross-moved for an order requiring the respondent to pay the arbitral award into court.

The motion judge ordered the applicant to post security for costs and dismissed the cross-motion.

On appeal to the Divisional Court, the court found that the motion judge erred in principle by failing to undertake a holistic analysis of the justness of the security for costs order, and set it aside.

However, the court upheld the refusal to order the advance payment of the arbitral award into court, as Article 36(2) of the International Commercial Arbitration Act was not engaged because the respondent had not applied to set aside the award in China.

The plaintiffs brought a motion to strike the defendants' statement of defence, alleging a failure to answer undertakings from earlier court orders regarding the production of financial statements, tax returns, and bank records.

The court found that the defendants had either answered or used best efforts to answer the undertakings, such as requesting documents from the CRA, accountants, and banks.

The motion was dismissed, and the plaintiffs were ordered to pay $20,000 in costs due to the disproportionate expense incurred on the motion.

The plaintiff municipality brought a motion under Rule 30.10 for the production of financial records from non-party financial institutions relating to the defendant Snowball.

The action involves an alleged $23 million fraud scheme manipulating the plaintiff's procurement processes.

Snowball, a former employee, opposed the motion, arguing the records were not relevant, production was not necessary before discovery, and it would violate her privacy rights.

The court found the records were highly relevant to tracing the defrauded funds and assessing liability, and that pre-discovery production was necessary for the forensic accountants to complete their investigation.

The court also rejected the privacy arguments, finding no constitutional or statutory protection that would override the open court principle and the need for disclosure.

The motion was granted.

The plaintiff municipality brought a motion under Rule 30.10 for the production of financial records held by non-party financial institutions relating to the defendants.

The action arose from an alleged $2.5 million fraud involving the manipulation of the municipality's procurement processes by a former employee and various vendors.

The former employee had previously been convicted of criminal fraud related to the same conduct.

The court granted the motion, finding that the records were highly relevant to tracing the misappropriated funds and quantifying the losses, and that it would be unfair to require the plaintiff to proceed to discovery without them.

The court rejected the defendants' argument that their privacy interests precluded production.

The appellant, RE/MAX Realtron Realty Inc., appealed the dismissal of its claim for commission on a property sale.

The trial judge, in a mini-trial ordered during a summary judgment motion, found that two numbered companies involved in the transaction were distinct corporate entities, and the corporate veil could not be pierced.

Consequently, the holdover clause in the initial purchase agreement did not apply to the subsequent sale.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings regarding corporate distinctness, the application of the corporate veil test, or the absence of wrongdoing.

The court also upheld the substantial costs award against the appellant, noting its rejection of settlement offers.

The appellant, 2460907 Ontario Inc., appealed an order striking its claim for pure economic loss against the respondent, 1521476 Ontario Inc. The claim arose from the respondent's re-entry of premises leased to a third party, 2456787 Ontario Inc., where the appellant intended to operate a restaurant.

The appellant claimed a possessory or proprietary interest in the premises.

The Court of Appeal upheld the motion judge's finding that the appellant lacked such an interest because the respondent had not consented to an assignment of the lease.

Consequently, no duty of care could arise to support a claim for pure economic loss.

The court distinguished the case from relational economic loss precedents due to the absence of any direct relationship between the appellant and respondent.

The appeal was dismissed with costs.

The plaintiff failed to set a construction lien action down for trial within the statutory two-year period, resulting in the lien being dismissed.

The defendant brought a motion to dismiss the underlying contract action due to delay.

The court dismissed the motion, finding that the defendant had not suffered specific prejudice and emphasizing the principle that disputes should be resolved on their merits.

The action was permitted to proceed as a contract claim.

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 moving party brought a motion for leave to appeal the order of Steele J. dated June 8, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000.

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.