P. Du Vernet

Schindler Elevator Corporation brought an action to perfect a construction lien for unpaid services and materials supplied for the installation of elevators at the Women's College Hospital redevelopment project.

The general contractor, Walsh Construction/Bondfield Partnership (WBP), counterclaimed for delay impact losses, liquidated damages, and indemnification for penalties, alleging Schindler's delayed performance critically impacted the project schedule.

The court found that while Schindler breached the subcontract by delayed performance, WBP failed to prove that Schindler's delays impacted the critical path of the project or caused the majority of the claimed damages.

Schindler was awarded judgment for the unpaid subcontract balance, less minor set-offs for direct impacts, and WBP's claims against Schindler and its surety, Zurich, were dismissed.

The plaintiff, the Ontario Securities Commission, moved for summary judgment seeking a declaration that the transfer of a Welland home from the defendants, a husband and wife, to the wife alone was a fraudulent conveyance intended to defeat creditors.

The husband owed an outstanding fine to the plaintiff for breaches of the Securities Act.

The court found that the transfer was made for nominal consideration and with the acknowledged intent to protect the property from creditors.

The court granted summary judgment, declaring the conveyance fraudulent and void, and alternatively found that the husband retained an interest in the property via resulting and constructive trusts.

The plaintiff brought a motion to compel the cross-examination of a law clerk who swore an affidavit in support of the defendants' pending motion.

The defendants raised a preliminary objection that the plaintiff's motion was unsupported by an affidavit.

The court held that the plaintiff could rely on uncontentious documents in her motion record without an affidavit.

The court also granted the motion to compel cross-examination, finding that the plaintiff had a prima facie right to cross-examine and there was no basis to interfere with it.

The court determined the costs consequences following multiple contested discovery and procedural motions in a commercial dispute.

The defendants sought costs after successfully opposing aspects of the plaintiff’s motion to vary a discovery timetable and after succeeding on their own motion requiring the plaintiff to amend pleadings, deliver a proper affidavit of documents, and answer undertakings.

The court found the defendants substantially successful and ordered the plaintiff to pay costs.

Although the defendants requested substantial indemnity costs based on alleged misconduct, the court held that the plaintiff’s positions were not egregious and awarded costs only on a partial indemnity scale.

Costs were fixed at $15,000 for one group of defendants and $20,000 for another, inclusive of taxes and disbursements.