Robert C. Harason

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.

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.

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.

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 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.

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.

The moving party, a mortgagee, opposed the confirmation of a Master's report regarding a reference under the Construction Lien Act.

The Master had found that the mortgagee, by posting security under s. 44 to vacate liens, lost its priority over the liens and was liable for the full amount of the lien claims rather than just the holdback deficiencies.

The Superior Court of Justice found that the Master committed several palpable and overriding errors of law by failing to follow binding precedent, including decisions of the Divisional Court.

The court held that a mortgagee can post security under s. 44 without losing its priority under s. 78(2), that the mortgagees did not become statutory owners at the relevant time, and that the holdback deficiencies must be calculated based on the individual contracts of the lien claimants.

The Master's report was ordered to be revised accordingly.

The applicant sought a declaration that a judgment debt arising from the respondent’s misappropriation of corporate funds while acting in a fiduciary capacity would survive bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The respondent conceded the debt fell within the statutory category but argued that the application was hypothetical because no bankruptcy had yet occurred.

The court rejected that argument, holding that a declaration could properly be issued in advance of a bankruptcy where the debtor’s financial circumstances and the existence of an unsatisfied judgment made the issue practical and not merely theoretical.

Following earlier reasoning on the same factual background, the court declared that the debt would survive bankruptcy and awarded substantial indemnity costs.

The defendants moved to dismiss the action for alleged non-compliance with a prior disclosure order or, alternatively, for further production, particulars, and additional cross-examinations.

The plaintiff resisted the motion and sought an updated discovery plan.

The court held that the plaintiff had complied with the earlier order requiring production of profit and loss statements and declined to order further disclosure, additional affidavits of documents, or further cross-examinations.

Emphasizing the excessive interlocutory litigation in the matter, the court exercised its inherent jurisdiction to control its process, refused further procedural skirmishes without leave, and directed the parties toward completing discoveries and trial management.

Following a six‑day construction dispute trial involving claims for unpaid masonry work and breach of statutory trust under the Construction Lien Act, the successful plaintiff sought substantial indemnity costs exceeding $138,000.

The court had previously found that the corporate defendant breached statutory trust obligations and that its principal was personally liable, including findings that false declarations were advanced in support of the defence.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure and the principle of reasonableness in costs awards, the court held that the amount claimed was excessive relative to the value and complexity of the claim.

Although substantial indemnity costs were justified because of the breach of trust and litigation conduct, the court reduced the award.

Costs were fixed at $90,000 inclusive of disbursements and taxes.

A masonry subcontractor sued a homebuilder and its directing mind for unpaid amounts under four verbal construction contracts relating to brick and stone work on residential properties.

The defendants asserted that the subcontractor had been fully paid, relying primarily on alleged cash payments evidenced by copies of declarations acknowledging receipt.

The court rejected the credibility of the builder’s principal, finding the alleged cash payments were not proven and that the declarations were unreliable.

The court also found that funds received by the builder in respect of the projects constituted trust funds under the Construction Lien Act and that those funds had been improperly diverted.

Judgment was granted against the builder and its directing mind jointly and severally for unpaid contract amounts and breach of statutory trust.