Peter J. Mitchell

The plaintiff moved for leave to appeal a costs decision of a Case Management Master.

The Master had set aside a noting in default and awarded costs to the defendants.

The plaintiff argued it was presumptively entitled to costs because setting aside the default was an indulgence.

The court rejected this argument, finding the plaintiff had acted unreasonably by noting the defendants in default despite knowing they were defending the action and had served their statement of defence.

The motion for leave to appeal was dismissed with costs awarded to the defendants.

This decision addresses costs and interest following a trial where the plaintiff's action was dismissed, and the defendants were awarded damages for breach of contract.

The court exercised its broad discretion under the Construction Act, guided by the Rules of Civil Procedure, including Rule 49.10 regarding offers to settle.

The defendants sought substantial indemnity costs, but the court awarded partial indemnity costs for the period prior to December 31, 2019, and substantial indemnity costs for the period after, due to the plaintiff's grossly unreasonable settlement expectations which caused the case to proceed to trial.

The court also adjusted disbursements, including expert fees, and determined prejudgment and post-judgment interest rates.

The Gatti Group Corp. (GGC), a contractor, claimed a lien of $343,429.76 against John and Claudia Zuccarini for a residential renovation project.

The Zuccarinis denied the claim and counterclaimed for $382,371.50 for breach of contract.

The court found that a fixed-price contract existed between the parties, which GGC fundamentally breached by demanding additional payments not required by the contract and by ceasing work before completion.

The court dismissed GGC's claim and discharged its lien, awarding the Zuccarinis $332,667.44 in damages for change order overpayment, deficiency correction costs, completion costs, an assigned debt, and a returned deposit.

This decision addresses costs arising from the dismissal of two actions by Nanak Homes Inc. for delay.

The court found Nanak's conduct reprehensible due to significant, unexplained delays and failure to advance litigation, which warranted substantial indemnity costs.

The court also granted Kamco an indemnity against Nanak for third-party costs, concluding that Kamco reasonably joined third parties given Nanak's unparticularized claims.

Claims for non-party costs against LawPRO were dismissed as neither the "person of straw" test nor abuse of process was established.

Various defendants and third parties were awarded costs against Nanak, totaling $139,155.24.

The defendants brought a renewed motion for security for costs against the plaintiff corporation.

The court found that the plaintiff's financial statements, which showed consistent deficits and a lack of assets, provided good reason to believe the plaintiff had insufficient assets in Ontario to pay a potential costs award.

The court ordered the plaintiff to post $95,000 in security for costs, applying a rough justice apportionment to account for the defendants' counterclaim.

The defendants moved to dismiss the plaintiff's two construction defect actions for delay.

The actions were commenced in 2011 and 2012 but had not progressed to discoveries.

The plaintiff's former counsel claimed a 'mental block' prevented him from advancing the files, and the plaintiff's principal claimed ignorance of the delay.

The court found the delay was inordinate and inexcusable, noting the plaintiff's principal failed to monitor the litigation.

The court also found actual prejudice to the defendants, including the death of a key witness.

The motions were granted and the actions dismissed.

The defendant brought a motion to set aside a default judgment obtained by the plaintiff.

The plaintiff sought an adjournment because its counsel was unable to obtain instructions and intended to bring a motion to be removed from the record.

The court denied the adjournment, finding the defendant would suffer greater prejudice from delay.

On the merits, the court set aside the default judgment, finding the defendant had an arguable defence, moved promptly upon learning of the judgment, and had a reasonable excuse for the default due to internal processing errors and confusing correspondence from plaintiff's counsel.

The court awarded costs to the defendant.

The Defendants brought a motion for an order requiring the Plaintiff corporation, The Gatti Group Corp. (GGC), to post $124,913 as security for costs, pursuant to Rule 56.01(1)(d) of the Rules of Civil Procedure, alleging GGC lacked sufficient assets in Ontario.

The court applied the two-step test for security for costs motions, focusing on the initial onus on the moving party to establish "good reason to believe" asset insufficiency beyond mere conjecture.

The court found that the Defendants failed to provide adequate evidence of GGC's asset insufficiency, as their arguments primarily focused on the merits of the case or presented dubious and outdated information.

Consequently, the motion for security for costs was denied without prejudice, allowing it to be brought again with further evidence.

A companion motion for undertakings and refusals was adjourned.

Gibbs & Associates (G.A.), a law firm, sought a court determination on the scope of an assessment of its legal accounts rendered to 1904601 Ontario Ltd. (190).

Following a lien release agreement, 190 unilaterally initiated an assessment for ten accounts, including some already paid and outside the agreed scope of five outstanding accounts.

The court characterized 190's actions as "sharp practice." The court ordered that accounts 8 through 13 be assessed, finding that accounts 1 through 4, which were paid more than 12 months prior and subject to a previous discount agreement, should not be assessed due to the absence of special circumstances and being out of time under the Solicitors Act.

The plaintiffs brought a motion to compel the defendant, Hossein Azargive, to reattend discovery to answer numerous refusals.

The refusals concerned questions about photographs, design-related issues, applicable professional standards, and specific factual inquiries regarding negligent renovation work.

The court found the questions relevant to the pleadings and the defendant's defence, including his professional standards and expert opinion.

The motion was granted, and the defendant was ordered to reattend discovery.

The plaintiff, Tarion Warranty Corporation, brought a motion to restore its action to the trial list and for a timetable, after the action was due to be dismissed for delay.

The court applied the two-part test requiring an acceptable explanation for the delay and no non-compensable prejudice to the defendants.

The court found the plaintiff provided an acceptable explanation, citing the complexity of the construction claim, extensive discovery, and the necessity of resolving a related action (the 1592 action) before fully particularizing damages.

The court also found no specific evidence of non-compensable prejudice from the opposing defendants, despite a strong presumption of prejudice due to the delay.

The motion was granted, restoring the action to the trial list and setting a timetable for future steps.

Following a summary judgment motion where the plaintiff obtained judgment for a portion of its claim for drywall installation and extras, both parties sought costs.

The plaintiff claimed $78,810 and the defendant claimed $95,056.76.

The court found both claims totally unreasonable and criticized the parties for ignoring the proportionality principles set out in Hryniak v. Mauldin.

To discourage wasteful use of court time, the court awarded the plaintiff significantly reduced costs of $15,000, inclusive of disbursements and HST.

The plaintiff drywall contractor brought a motion for summary judgment against the defendant general contractor for the balance owing on a construction contract and for over $1.1 million in alleged extras.

The defendant admitted a portion of the contract balance and a portion of the extras but disputed the remainder, citing delays, deficiencies, and lack of written authorization for the extras.

The court granted partial summary judgment for the $750,641 admitted by the defendant but dismissed the balance of the motion, finding that the conflicting evidence regarding verbal authorizations, design changes, and project delays required a trial.

A construction crane collapsed onto a partially completed retirement residence, causing significant property damage covered by the owner’s “all risks” construction insurance policy.

The owner’s insurer commenced a subrogated action and co‑defendants sought contribution and indemnity from the contractor and crane supplier.

The moving parties sought summary judgment dismissing the crossclaims, arguing that the construction contract contained an insurance covenant allocating the risk of property loss to the owner’s project insurance and benefiting contractors and subcontractors.

The court held that the covenant barred claims against those parties and prevented contribution claims under the Negligence Act.

The court further held that the insurer’s waiver of subrogation and the doctrine recognizing insurable interests of trades on construction projects also barred the claims.

All crossclaims against the moving parties were dismissed.

Following dismissal of the main action and the third party claim, the court determined costs among the parties.

The plaintiff argued that the defendant’s costs should be reduced due to inadequate documentary production and the calling of allegedly irrelevant witnesses.

The court rejected most of these objections but applied modest deductions for fairness.

Applying Rule 57.01(1) of the Rules of Civil Procedure and considering the complexity of the expert engineering evidence, the court applied a 65% partial indemnity factor rather than the typical 60%.

The plaintiff was ordered to pay partial indemnity costs to both the defendant and the third party.

Following a successful motion setting aside an administrative dismissal and permitting amendments to the statement of claim, the court addressed costs.

The moving party sought partial indemnity costs after obtaining substantive relief on the underlying motion.

The court reviewed the parties’ submissions and applied the Rule 57 factors, emphasizing that defendants opposing administrative dismissal motions may face costs exposure depending on the evidentiary record and circumstances.

The court found the moving party’s request reasonable and rejected arguments that insurer involvement should preclude costs.

Costs were fixed at an all‑inclusive partial indemnity amount of $12,500 payable within 30 days.

Following multiple related motions arising from construction disputes concerning steel connections at a university project, the court addressed the issue of costs.

The motions involved claims for summary judgment, limitation defences, dismissal of counterclaims, and issues under the Construction Lien Act.

The outcomes of the underlying motions were divided among the parties.

The court held that the mixed results and the procedural posture of overlapping claims justified denying costs to all parties.

The plaintiff municipality brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s administrative dismissal for delay and sought leave to amend its statement of claim in a negligence and breach of contract action arising from engineering services related to sewer system upgrades.

The court applied the contextual approach governing the setting aside of administrative dismissals, considering factors such as the explanation for delay, prejudice, and the intention to proceed with the action.

The court accepted that the failure to meet the set-down deadline resulted from inadvertence by counsel and that the plaintiff provided an adequate explanation for litigation delays in a complex, document-heavy matter.

The plaintiff successfully rebutted the presumption of prejudice arising from the expiry of a limitation period.

Leave to amend was largely granted as the amendments primarily particularized existing claims, though certain allegations relating to an earlier environmental study report constituted a potential new cause of action and were allowed subject to the defendant’s right to raise a limitation defence.

Multiple motions were brought in three related actions arising from the failure of steel connections on a construction project.

Tribury sought to declare Sandro's construction lien expired and dismiss the lien action.

The court declared the lien expired but allowed the action to continue as a breach of contract claim.

Edward and Tribury also moved for summary judgment to dismiss Sandro's claims, counterclaims, and crossclaims based on the expiration of the limitation period.

The court found that an agreement to mediate suspended the limitation period under section 11 of the Limitations Act.

Consequently, Sandro's 2010 action and its crossclaim for contribution and indemnity were timely.

However, Sandro's counterclaim and crossclaim for remediation costs in the 2009 action were delivered after the extended limitation period expired and were dismissed.