Richard Yehia

The decision addresses a motion by Gowing Contractors Ltd. and Zurich Insurance Company Ltd. to strike the statement of defence of Walsh Construction Company Canada and Walsh Construction Co., and to stay related actions, on the basis that Walsh failed to immediately disclose a settlement with the City of Toronto in a related action.

The court found that the settlement did not entirely change the litigation landscape of the actions involving Gowing and Zurich, and therefore the immediate disclosure doctrine did not apply.

The motion was dismissed.

The applicants, Gowing Contractors Ltd. and Zurich Insurance Company Ltd., brought a motion seeking further and better production from the defendants Walsh Construction Company Canada and Walsh Construction Co., and leave to amend their pleadings.

The court found that Walsh had overproduced irrelevant documents and failed to produce relevant documents concerning harassment/discrimination allegations and Walsh's delay claim against the City.

The court ordered Walsh to provide a better affidavit of documents, disclose search terms, and produce relevant documents, including those related to its delay claim against the City and its settlement, subject to the City's right to challenge.

Leave to amend pleadings was granted for breach of contract claims but denied for negligence claims and damages related to unrelated projects.

The court also awarded costs thrown away to the applicants due to Walsh's deficient production and late disclosure.

This construction lien reference involved a summary trial of an issue concerning the timeliness and bona fide nature of Honeywell Limited's claim for lien against Bondfield Construction Company Limited.

The Lien Vetting Committee, comprising Ozz Electric Inc., Urban Mechanical Contracting Ltd., and Zurich Insurance Company Ltd., argued that Honeywell's lien had expired.

The court found that Honeywell failed to prove its claimed last date of supply, as the evidence provided was deficient and contradictory.

The court also addressed the application of the rule in Browne v. Dunn, concluding it was not engaged because the contradictions were within the witness's own affidavit.

Furthermore, the court commented that even if the last date of supply had been proven, the supply after receiving notice of Bondfield's financial issues would not have been bona fide.

Consequently, Honeywell's lien was ruled to have expired and was ordered vacated.

The parties attended a case conference to schedule a 40-day trial for a construction dispute commenced in 2015.

The court noted that there were ongoing interlocutory motions regarding productions and pleadings, and no expert reports had been delivered.

The court declined to fix a trial date, holding that an action with ongoing interlocutory matters is not ready for trial, and directed the parties to return to trial scheduling court once the outstanding matters and expert reports are completed.

Following the dismissal of the applicant's application for an injunction on jurisdictional grounds, the successful respondent sought costs of $18,172.31 on a substantial indemnity basis.

The applicant conceded that costs should be awarded on a partial indemnity basis.

The court agreed that there was no basis for a punitive costs award and fixed the respondent's costs at $10,000 all-inclusive on a partial indemnity basis, after deducting wasted costs for an adjournment caused by the non-availability of judicial resources.

The applicant insurance company sought a mandatory injunction by way of application to compel the respondent construction company to pay funds into trust as security for construction lien bonds.

The respondent argued that an injunction cannot be the sole primary relief sought in an application under Rule 14.05(3)(g) of the Rules of Civil Procedure.

The court agreed, holding that injunctive relief must be ancillary to other relief in a proceeding properly commenced by notice of application.

The application was dismissed.

The plaintiff surety brought a motion for summary judgment against an individual defendant based on an indemnity agreement guaranteeing reimbursement for payments made under lien bonds issued for several corporate defendants.

The defendant denied signing the agreement and alternatively asserted the defence of non est factum, alleging she had not understood the nature of the document.

The court found on the evidence, including the testimony of a subscribing witness and the defendant’s cross‑examination, that the defendant had signed the agreement.

The court held the defence of non est factum was unavailable because there was no evidence of misrepresentation and the defendant had been careless in signing documents without inquiry.

Summary judgment was granted for the amount paid under the bonds, while the claim for additional fees and expenses was not granted due to lack of evidentiary support.