Peter A. Mahoney

Following an appeal from a Deputy Judge’s decision in Small Claims Court, the appellant obtained partial success when the court set aside the dismissal of the claim and allowed the matter to proceed to trial.

However, several key issues—including the identity of the contracting parties, the applicability of the limitation period, and potential personal liability—were reserved for determination at trial.

The court found that the appeal arose largely from a misnomer in the plaintiff’s claim attributable to the appellant itself.

Although the appeal permitted the action to continue, that benefit did not justify awarding costs.

The court therefore declined to award costs to either party.

Appeal from a Small Claims Court decision dismissing a construction contract claim under Rule 12.02 of the Small Claims Court Rules on the basis that the plaintiff corporation did not exist at the time of contracting and that the limitation period had expired.

The appellate court held that the deputy judge committed palpable and overriding errors by failing to analyze the legal effect of corporate amalgamation and by refusing to permit amendment of the plaintiff’s name despite the absence of demonstrated prejudice.

The court also found the deputy judge inadequately addressed evidence that a later payment could constitute an acknowledgment extending the limitation period.

The dismissal was set aside and the claim was amended to substitute the amalgamated corporation, with key issues—including the proper contracting party, limitation period, and personal liability—left for determination at trial.

The applicants brought a motion for directions regarding the distribution of net proceeds from the sale of a jointly owned winery business.

The parties disputed the interpretation of shareholder agreements governing repayment of shareholder loans where sale proceeds were insufficient to satisfy all advances.

The court held the agreements did not directly resolve the allocation issue and interpreted the parties’ commercial relationship as a joint venture intended to operate on an equal footing.

The court ordered that unpaid wages be paid first, followed by repayment of advances secured by mortgage, with the remaining proceeds distributed proportionally among the excess shareholder loans.

No order for costs was made.

Following dismissal of the plaintiff’s construction tendering claim, the court determined the appropriate costs award.

The successful defendant sought partial indemnity costs to the date of its Rule 49 offer and substantial indemnity costs thereafter.

The court declined to award substantial indemnity costs, holding that a nominal offer to dismiss the action without costs did not justify enhanced costs absent sanctionable conduct by the plaintiff.

Given the unsettled state of the law on construction tendering issues and the legitimate legal dispute raised, the court found the case warranted litigation.

Partial indemnity costs were awarded with reductions to certain fees and disbursements, including expert and travel expenses.

The plaintiff contractor challenged the rejection of its bid in a public tender for a highway construction project, alleging breach of the tendering process and seeking lost profits after the contract was awarded to a higher bidder.

The owner investigated the bid following a complaint and determined that the bidder had understated the declared value of imported steel, a factor used to calculate the adjusted tender price.

The court held that the owner was entitled to investigate compliance beyond the face of the bid and that the inaccurate declaration constituted a material non-compliance with the tender requirements, preventing formation of Contract A under the tendering framework.

The court further held that even if there had been a breach, the claim would have been barred by an exclusion clause in the tender documents.

The action was dismissed.

The plaintiffs brought a motion to compel the defendants to comply with a prior consent order requiring production of financial and maintenance records relating to a hotel property that had been sold to the plaintiffs and leased back to the defendants.

The defendants resisted production on the basis of competitive sensitivity, the structure of their accounting records across multiple hotel properties, prior endorsements by another judge, and alleged non‑existence of certain documents.

The court held that competitive concerns do not override production obligations, that complexity in financial records is not a valid basis to refuse production, and that earlier endorsements did not vary the consent order.

The court further held that editing or expunging portions of financial statements was not permitted.

The defendants were ordered to produce the required materials within 30 days, failing which the plaintiffs could move to strike the statement of defence.

Following a trial in which the plaintiff obtained judgment for unpaid amounts arising from a business relationship, the court addressed the issue of costs.

The plaintiff sought partial indemnity costs to the date of settlement offers and substantial indemnity costs thereafter under Rule 49.

The court found the offers did not qualify for enhanced costs because they had been withdrawn and were not properly filed.

Considering the conduct of the parties and complications arising from an acknowledged but unpleaded debt owed by the plaintiff to the defendant, the court reduced the costs sought and awarded partial indemnity costs only.

Following earlier judgments concerning the sale of a winery business, the respondent sought costs related to proceedings leading to the order directing that the winery be listed for sale.

The moving party requested partial indemnity costs after the court found that the opposing parties’ proposed sale arrangements were inconsistent with the court’s earlier judgment and appeared designed to delay the sale.

The court considered the financial circumstances of the parties and the context of the dispute involving a failed winery venture funded by an investor and operated by the applicants.

Despite the moving party’s general success, the court declined to award costs.

The court cautioned that failure to cooperate with the ordered sale could result in significant future cost consequences.

The landlord appealed a Landlord and Tenant Board decision ordering it to pay $3,000 in statutory compensation to former tenants who had received a notice of termination for conversion of their mobile home site.

The tenants were subsequently evicted for non-payment of rent and owed over $3,300 in arrears.

The Divisional Court upheld the Board's findings that the compensation obligation survived the eviction and that the claim was not statute-barred.

However, the Court allowed the appeal on the basis that the Board erred in law by failing to set off the rent arrears against the compensation owed, resulting in no net compensation payable to the tenants.

The applicant commenced an application for judicial review regarding a lease renewal decision by The Niagara Parks Commission.

The respondent brought a motion to quash the application.

Before a decision was rendered, the Ontario Government opened the lease process to competitive bidding, prompting the applicant to file a Notice of Abandonment.

The respondent sought costs for the abandoned application.

The court found the substantive issues moot and exercised its discretion under Rule 38.08(3) to deny costs, as the abandonment resulted from a government decision outside the applicant's control that rendered the application unnecessary.

The accused, charged with defrauding her employer, brought a motion for the production of financial records from third parties.

The motion was dismissed as a fishing expedition.

The trial judge ordered the Crown to pay half of the substantial costs incurred by the third parties in defending the motion, as the accused was judgment proof.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that there is no statutory or inherent jurisdiction to award costs against the Crown in the trial of an indictable offence absent Crown misconduct or a serious interference with the administration of justice.

The appellant appealed a trial judgment regarding a breach of contract for machining steel pieces.

The appellant argued the trial judge erred in failing to award damages for a scrapped forging and in apportioning liability for extra honing based on the contract price between the parties rather than the reduced price negotiated with the customer.

The Divisional Court dismissed the first ground, finding no palpable and overriding error in the trial judge's conclusion that the damages evidence was insufficient.

However, the court allowed the appeal in part on the second ground, holding that the trial judge misapplied the law by not basing the apportionment on the appellant's loss of profits from its customer.

The respondent's cross-appeal on factual findings and costs was dismissed.

The defendants appealed a motion judge's order dismissing their third party claim against the officers and directors of the plaintiff corporation.

The Court of Appeal allowed the appeal, finding that the motions judge erred in holding that a claim for contribution could not be maintained and that the representations of the third parties had to be made outside the scope of their office.

The Court held it was not plain and obvious that the third party claim could not succeed, set aside the dismissal, and awarded costs to the appellants.