Peter J. Mitchell

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.

Following the dismissal of the appeal, the parties made written submissions on costs.

The respondent sought costs on a full indemnity basis, which the court rejected, awarding partial indemnity costs of $6,209.88.

Both parties also sought costs for the earlier motion for leave to appeal, on which the appellants had been successful.

The court found that due to divided success between the leave motion and the appeal, no costs should be awarded for the leave motion.

The defendants appealed a motion judge's decision dismissing their application for security for costs and awarding substantial indemnity costs against them.

The defendants argued the corporate plaintiff failed to prove impecuniosity because it did not provide evidence that its creditors refused to fund the litigation.

The Divisional Court dismissed the appeal, holding there is no absolute requirement in every case for a plaintiff to show creditors declined to fund the litigation to establish impecuniosity.

The court also upheld the motion judge's findings on the merits of the claim and the costs award.

The plaintiff school board sued multiple defendants, including the appellant engineering firm, for damages arising from a collapsed gymnasium wall.

The plaintiff's claim against the appellant was statute-barred under the Professional Engineering Act.

However, the other defendants brought cross-claims for contribution and indemnity against the appellant within the two-year limitation period under the new Limitations Act, 2002.

The appellant moved for summary judgment to dismiss the cross-claims, arguing they could not survive if the main claim was statute-barred.

The Court of Appeal dismissed the appeal, holding that section 18 of the Limitations Act, 2002 preserves the right to claim contribution and indemnity even if the plaintiff's direct claim against the concurrent tortfeasor is statute-barred.

The appellant builder appealed a motion judge's decision refusing to stay a negligence claim in favour of arbitration.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the arbitration clause did not encompass claims in negligence.

Furthermore, because the homeowner's claim involved other parties not bound by the arbitration agreement, the motion judge properly exercised his discretion under s. 7(5) of the Arbitration Act, 1991 to refuse a partial stay to avoid a multiplicity of proceedings.

Under s. 7(6) of the Act, this discretionary decision was unappealable.

The appellant appealed a summary judgment dismissing its claim.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the relevant statute and regulation do not create a private law duty of care.

The court also declined to interfere with the motion judge's discretionary costs award.

Costs of the appeal were fixed at $5,733.32.