P. Mahoney

The defendant, Mansions of Forest Glen Inc., moved to set aside a noting in default and for leave to file a statement of defence.

The plaintiff, 942268 Ontario Limited, opposed the motion.

The court considered factors such as the length and reasons for delay, the parties' behaviour, claim complexity, and prejudice.

Finding that the defendant had a continuing intention to defend, received no direct notice of default, and acted expeditiously once notified, and that the plaintiff would suffer no uncompensable prejudice, the court granted the motion.

The noting in default was set aside, and the defendant was given 30 days to file a statement of defence.

Following the dismissal of the applicants' application regarding failed contracts of purchase and sale for condominium units, the successful respondent sought partial indemnity costs of approximately $42,000.

The applicants argued no costs should be awarded as the application was not vexatious.

The court rejected the applicants' argument, finding the respondent was prima facie entitled to costs.

Applying the principles from Boucher, the court found the requested amount excessive and fixed partial indemnity costs at $22,386.23 inclusive of HST and disbursements.

The applicants sought a declaration that "Reservation Agreements" for condominium units were binding contracts and that the respondent engaged in bad faith bargaining by proposing inconsistent terms in subsequent draft agreements of purchase and sale.

The court found that the Reservation Agreements were not binding contracts because they lacked essential terms, specifically the precise identification and location of the condominium units, and indicated that further terms (like down payment) needed to be agreed upon.

The court also noted that the Planning Act prohibited offering land for sale prior to plan approval at the time the agreements were made.

Consequently, the application was dismissed.

In the context of CCAA proceedings for U.S. Steel Canada Inc. (USSC), the applicant sought approval for Transition Arrangements with its parent company, a Business Preservation Plan involving significant cash conservation measures (including suspension of pension, OPEB, and municipal tax payments), and Amended DIP Financing.

The court approved the motions, finding that the Transition Arrangements were fair and reasonable, and that the Business Preservation Plan and DIP financing were necessary to allow USSC to continue operations and pursue a restructuring solution, despite objections from the union and municipalities regarding the suspension of benefits and taxes.

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.