Robert C. Harason

The plaintiff, a tree service company, brought construction lien actions against the defendants, a joint venture consortium, for unpaid work and extras related to clearing and grubbing for the Highway 407 East extension project.

The defendants counterclaimed for damages incurred to complete the work after terminating the subcontract due to the plaintiff's non-performance.

The court found that the written subcontract governed and required the plaintiff to clear the entire right-of-way for a lump sum, rejecting the plaintiff's argument that the scope was limited to a smaller area.

The court upheld the defendants' termination of the subcontract for non-performance.

The plaintiff was awarded $177,437.53 for unpaid contract work, holdback, and certain approved extras, while its claims for loss of profit, quantum meruit, and punitive damages were dismissed.

The defendants were awarded $411,244.81 on their counterclaim for the costs of retaining replacement subcontractors.

The plaintiff brought an oral motion during trial to strike portions of an affidavit and its exhibits, primarily on grounds of hearsay, inadmissibility as business records, opinion/legal conclusion, prior consistent statements, and non-compliance with discovery rules.

The court largely dismissed the motion, finding most documents admissible as business records under section 35 of the Evidence Act.

It ruled that diary notes were not inadmissible prior consistent statements and granted leave for information not provided within 60 days due to lack of prejudice.

However, the court struck one speculative sentence from the affidavit and ruled that numerous photographs were not admissible as business records.

The moving party brought a motion to compel the responding parties to provide information required under section 39 of the Construction Act.

The responding parties provided the requested information after the motion was served but before the hearing.

The moving party sought costs of the motion.

The court awarded costs to the moving party, finding that the responding parties caused the unnecessary motion by failing to respond to the section 39 demand within the statutory 21-day period and making no reasonable effort to resolve the motion costs.

Following a motion to strike where success was equally divided, the parties submitted written arguments on costs.

The moving parties had successfully struck personal claims against the individual defendants but failed to strike the oppression remedy claim.

The responding party had to amend its pleadings to save the oppression claim.

The court found neither party was substantially successful and fixed costs at $40,000 on a partial indemnity basis, payable in the cause.

Following a motion to strike where personal claims against the individual defendants were struck but the oppression remedy claim survived, the court held a case management conference to settle the terms of the order.

The court issued a file direction settling the order and providing procedural directions for the delivery of a fresh as amended statement of claim, subsequent pleadings, and discovery.

The defendants brought a motion for security for costs against the corporate plaintiff under Rule 56.01(1)(d).

The plaintiff brought a cross-motion seeking a sealing order for an affidavit and to exclude certain evidence allegedly obtained improperly by the defendants.

The court dismissed the cross-motion for a sealing order, finding the plaintiff did not meet the Sherman Estate test.

On the security for costs motion, the court found the defendants met their initial onus of showing good reason to believe the plaintiff had insufficient assets in Ontario, and the plaintiff failed to demonstrate sufficient assets.

The plaintiff was ordered to post security for costs in the amount of $105,000 on a pay-as-you-go basis.

The plaintiff sued a corporation and its directors for damages arising from defective shut-off valves.

The defendants brought a motion to strike the personal claims against the directors, including negligence, inducing breach of contract, piercing the corporate veil, and an oppression remedy.

The court struck the negligence and inducing breach of contract claims, applying the rule in Said v. Butt, and struck the claim to pierce the corporate veil.

However, the court declined to strike the oppression remedy claim, finding that the plaintiff had pleaded sufficient material facts to support a reasonable expectation that the corporation's affairs would be conducted to protect its interests as a creditor.

The plaintiff brought a motion without notice to the foreign defendant, Taizhou Chuangju Valve Co. Ltd., seeking orders for substituted service, validation of service, and an extension of time for service of the statement of claim.

The motion followed an unsuccessful attempt to serve the foreign defendant via the Hague Convention.

The court dismissed the request for validation of service, finding no evidence of evasion, but granted substituted service by regular mail and extended the time for service.

The court also declined to award costs, noting the motion was brought without notice and there was no evidence of deliberate evasion by the foreign defendant.

The defendants moved to dismiss the plaintiff's action and discharge its construction lien, arguing that the plaintiff corporation contracted using an unregistered business name and failed to disclose its corporate identity.

The plaintiff argued the lapse in registration was inadvertent and the defendants were aware they were dealing with a corporation.

The court dismissed the motion, finding that the voluminous and contradictory affidavit evidence raised serious credibility issues that could not be resolved on a summary basis and required a full trial.

The plaintiff, a mechanical systems contractor, sought summary judgment for an unpaid balance of $103,047.48 plus interest against the corporate defendants and their directors for breach of trust under the Construction Lien Act.

The defendants admitted the debt and the existence of statutory trusts but argued the action was time-barred.

The court found that written acknowledgments and promises to pay by the directors, including digital signatures on emails, restarted the limitation period.

The court also found that the directors were personally liable for knowingly engaging in breaches of trust by misusing trust funds for overhead and management fees.

Summary judgment was granted to the plaintiff, including substantial indemnity costs and declarations of breach of trust surviving bankruptcy.

The plaintiff, a mechanical systems contractor, sought summary judgment for an unpaid balance and interest on a condominium construction project.

The defendants, including the owner corporation and its directors/officers, admitted the debt and the existence of statutory trusts under the Construction Lien Act.

The court found that the defendants breached these trusts by using funds for unauthorized purposes, including general overhead and management fees to the individual defendants.

The defendants' primary defense of a lapsed limitation period was rejected due to written acknowledgments of debt and an agreement that induced the plaintiff to forbear from litigation.

The court granted summary judgment for the plaintiff, including the principal debt, interest, declarations of breach of trust and personal liability for the directors, and substantial indemnity costs.

This appeal and cross-appeal arose from a failed residential subdivision development project in Fort Erie, Ontario.

The central issues were whether the parties had entered into an enforceable written agreement dated December 13, 2005, whether there was a breach or repudiation of that agreement, and the validity of a construction lien filed by Ravenda Homes.

The motion judge had dismissed Ravenda Homes's breach of contract action, vacated its certificate of pending litigation, allowed its lien action, and allowed the respondent's counterclaim in part.

On appeal, the Court of Appeal upheld most of the motion judge's findings but set aside the award of damages under section 35 of the Construction Lien Act, referring that issue to trial.

The moving party sought to review and set aside a chambers judge's decision denying its request for security for costs against the respondent.

The security was sought for the main action, the appeal, and the cross-appeal in the Divisional Court, in the aggregate amount of $485,316.23.

The chambers judge had refused the order based on delay in bringing the motion, the fact that trial costs had not been determined, the respondent's construction lien judgment in its favour, and the excessive amount claimed for appeal costs.

The appellate panel upheld the chambers judge's decision, finding that considerable deference was owed and that the chambers judge had properly applied the law and reasonably concluded that the justice of the case required refusal of the security order.

This endorsement addresses an issue regarding the payment of costs from trust funds in a construction lien proceeding.

Quality Rugs of Canada Limited sought to have its previously awarded costs for a motion and action paid from the Trust Funds, which were established to secure claims of various lien claimants.

The court declined this request, affirming its prior costs endorsement.

The court reasoned that the issue had been previously decided, that "Other Lien Claimants" were not parties to Quality Rugs' specific proceeding and should not bear its costs, and that allowing such payment would create an impermissible priority for Quality Rugs' costs contrary to the rateable distribution provisions of the Construction Lien Act.

This costs endorsement addresses three sets of costs arising from prior motions: Quality Rugs' unsuccessful claim for carriage/salvage costs, Quality Rugs' successful summary judgment motion, and Quality Rugs' costs of the action.

The court applied principles from the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing proportionality and reasonable conduct.

Quality Rugs' claim for salvage costs was dismissed, with the court finding its tactics unreasonable and the claimed services not benefiting the lien class.

Consequently, Quality Rugs was ordered to pay partial indemnity costs to Carriage Counsel ($20,125 plus HST) and Casaco/Casimiro ($4,000 plus HST) for that motion.

For its successful summary judgment motion, Quality Rugs was awarded $7,500 plus HST from Casaco/Casimiro.

For the action, Quality Rugs was awarded $10,000 plus HST from Sedona Development Group (Lorne Park) Inc., Sedona Development Group Inc., Casaco Developments Inc., and Casimiro Holdings Inc. The court found Quality Rugs' overall costs claims to be disproportionate to the amount at stake and its conduct in pursuing salvage costs to be unreasonable, though not egregious enough for substantial indemnity.

The costs orders were subject to set-off.

In a construction lien proceeding involving multiple unconsolidated actions, counsel for one lien claimant sought salvage costs from the trust monies available to all lien claimants.

The court dismissed the claim for salvage costs, finding it lacked jurisdiction to award such costs against non-consenting lien claimants where the actions were not consolidated and the counsel was not appointed carriage counsel.

The court also determined the validity and quantum of the lien claimant's claim, finding it valid for $82,278.69 despite some missing purchaser files and lack of strict compliance with written authorization requirements for extras.

This costs endorsement pertains to a motion brought by 1372708 Ontario Inc. to compel Ravenda Homes Ltd. and its principal, John Ravenda, to answer undertakings and questions refused during discovery in three complex proceedings.

The moving party achieved substantial success, as most outstanding discovery issues were resolved in their favour, either by court order or consent after the motion was initiated.

The court awarded partial indemnity costs to the moving party, reducing the amount due to some unsuccessful aspects of the motion, such as the attempt to examine an expert on a Deloitte LLP report.

The court emphasized that costs "in the cause" are only appropriate in extraordinary circumstances, which were not present here, and fixed costs at $19,000.00 inclusive of HST.

This addendum clarifies and amends a previous summary judgment ruling.

The court addressed five requests for amendment, largely granting those related to the scope of claims not pursued on summary judgment, legal costs for vacating a Certificate of Pending Litigation (CPL), and utility/maintenance costs for model homes.

The court affirmed its power to amend a ruling before it is finalized and rejected attempts to re-litigate factual findings.

The defendant contractor brought a motion for summary judgment alleging the plaintiff subcontractor repudiated a contract for the supply and installation of structural steel on a retail construction project.

The plaintiff asserted the defendant wrongfully terminated the contract and claimed payment under a construction lien.

The court found numerous genuine issues requiring a trial, including whether either party fundamentally breached or repudiated the contract, whether time was of the essence where no delivery date appeared in the subcontract, whether consultant review of shop drawings was required before fabrication drawings were produced, and whether delays were attributable to the contractor or consultants.

The court also held that issues concerning the timeliness and quantum of the construction lien, damages, mitigation, and credibility disputes could not be fairly determined on a summary judgment motion.

In a discovery motion arising from three related civil proceedings concerning an alleged subdivision development agreement, model homes, and a renovation claim, the moving parties sought answers to undertakings and refusals and leave to examine on an expert loss-of-profits report.

The court held that Rule 31.10 barred examination of the expert author, and that there was no express or implied right to discover a party on its delivered expert report absent exceptional circumstances and clearly identified holes in the expert's analysis.

Relying on proportionality and accessibility principles, the court rejected what would amount to an end run around the expert discovery rules.

The court nevertheless ordered re-attendance to answer outstanding discovery matters, a further and better affidavit of documents, an adjournment of the trial, and a judicial pretrial after the contemplated summary judgment motion.