Robert C. Harason

The moving defendant sought to set aside a default judgment, noting in default, and substantial indemnity costs order granted after he failed to attend discoveries and the motion for judgment.

The court applied the Rule 19.08 test considering promptness, explanation for default, and the existence of an arguable defence.

The defendant learned of the judgment only upon service of an examination in aid of execution and moved promptly thereafter, with delay largely attributable to difficulty obtaining the court file.

The court found a plausible explanation for the default and an arguable defence concerning alleged unpaid construction invoices and the contractual requirement for written authorization of extras.

The court also held that the plaintiff’s failure to disclose a prior $60,000 settlement with a co‑defendant—representing most of the total claim—was a significant non‑disclosure that independently justified setting aside the judgment.

The parties brought cross-appeals from orders of a Master in a long-standing construction dispute over failed heat pumps.

The defendants appealed the Master's refusal to allow them to amend their statement of defence to withdraw an admission that the personal defendants were partners, and the requirement to provide particulars for other amendments.

The plaintiff appealed the Master's order restricting its examination for discovery to a specific personal defendant, and sought leave to appeal the Master's costs award.

The Divisional Court dismissed the defendants' appeal, finding the Master correctly applied the test for withdrawing an admission.

The Court allowed the plaintiff's appeal, holding the Master lacked jurisdiction to restrict discovery without consent, and varied the costs award from $5,500 to $25,000 due to the Master's failure to provide reasons for drastically reducing the costs sought by both parties.

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.

The court determined the costs of two pre-hearing motions in an appeal.

The respondent was awarded $2,500 in costs on a partial indemnity basis for successfully moving to strike the self-represented appellant's improperly cast motion for leave to appeal.

No costs were awarded for the appellant's successful motion to extend the time for appeal, as the appellant required an indulgence from the court and the respondent took an unreasonable position in resisting the motion.

Following the dismissal of the appellant's appeal, the respondent law firm sought costs on a substantial indemnity basis of over $29,000.

The appellant, who was self-represented, sought costs of $3,000 to $4,000 despite being unsuccessful.

The Divisional Court awarded costs to the respondent but significantly reduced the quantum to $2,000.

The court noted that the respondent's counsel invested excessive time, sought an unjustifiably high rate, and had previously been criticized by other judges for unprofessional conduct and impaired judgment in acting for his own firm.

The Divisional Court issued a costs endorsement following the dismissal of the appellant's appeal.

The respondent law firm sought costs of up to $29,532.91 on a substantial indemnity basis.

The court noted that the respondent's counsel had invested excessive time in the matter and sought compensation at an unjustifiably high rate, particularly given previous judicial criticism of his conduct.

Considering the lack of complexity and brief attendance required, the court fixed costs payable by the appellant to the respondent at $2,000 all-inclusive.

In a commercial dispute concerning allegedly defective heat pumps installed in condominium projects, the defendants moved to withdraw an admission in their Statement of Defence that certain individual defendants were partners in the corporate defendant.

The court applied the three‑part test for withdrawing admissions, requiring a triable issue, a reasonable explanation for the admission, and absence of non‑compensable prejudice.

The defendants failed to provide credible affidavit evidence explaining the admission and did not satisfy the requirements of the test.

The motion to withdraw the admission was dismissed.

The court permitted certain amendments to the Statement of Defence, required further particulars for others, and imposed a discovery plan after the parties were unable to agree.

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.

The appellant appealed a motion judge's decision upholding the validity of a direction assigning the proceeding to the respondent law firm.

The appellant argued the direction was signed under duress and was superseded by a subsequent contingency agreement.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the motion judge's assessment of the evidence and concluding that the appellant was merely attempting to re-litigate factual findings.

The self-represented moving party sought an extension of time to file a notice of appeal from an order directing payment of funds to the responding party.

The moving party had initially filed incorrect procedural motions due to a misunderstanding of the rules.

The court granted the extension, finding that the moving party had a settled intention to appeal, adequately explained the delay as a mistake rather than a tactical move, and that the responding party suffered no prejudice.

The self-represented moving party sought an extension of time and leave to appeal an interlocutory order that dismissed his appeal of a Master's case management decision.

The court granted the extension of time but dismissed the motion for leave to appeal.

The court found no error in the motions judge's decisions regarding costs, the requirement for the moving party to participate by videoconference, or proceeding in the moving party's absence when he chose not to attend.

The court issued an addendum to a previous endorsement to clarify that the dismissal of a motion to quash an appeal included the issues of re-attendance for discovery and further examinations.

The court also dismissed a motion to expunge a costs outline, holding that non-compliance with Rule 57.01(6) of the Rules of Civil Procedure is not fatal where there is no prejudice and procedural and substantive justice can still be accomplished.

The plaintiff brought a motion to quash the defendant's appeal of a motion judge's order.

The motion judge had denied the defendant leave to bring a motion seeking answers to undertakings and refusals, and permission to amend its statement of defence and counterclaim.

The plaintiff argued the order was interlocutory and therefore could not be appealed under s. 71(3) of the Construction Lien Act.

The Divisional Court dismissed the motion to quash, finding that the denial of leave to amend the statement of defence effectively barred the defendant from raising substantive defences, rendering the order final rather than interlocutory.

The plaintiff appealed a trial judge's decision to stay the proceeding for lack of jurisdiction.

The trial judge, on his own motion during the trial, raised the issue of jurisdiction and applied the Muscutt factors to find no real and substantial connection with Ontario.

The Court of Appeal allowed the appeal, holding that the defendants had attorned to Ontario's jurisdiction by participating extensively in the litigation, including pleadings, discoveries, and the trial itself.

The stay was lifted, and a new trial was ordered before a different judge.

Following a successful appeal that reduced a costs award from $40,000 to $25,000, the appellants sought substantial indemnity costs for the appeal.

They argued this was justified because the respondents' former counsel made an arithmetic error that misled the motion judge and refused to correct it.

The Divisional Court declined to award substantial indemnity costs, noting the offers to settle did not meet Rule 49 requirements and the amount claimed for costs ($25,820.47) exceeded the amount at stake in the appeal, violating the principle of proportionality.

The court awarded the appellants costs fixed at $10,000 plus disbursements.

The appellant appealed a $40,000 substantial indemnity costs award made against it following the dismissal of its summary judgment motion.

The Divisional Court found that the motion judge erred by relying on the respondents' counsel's misrepresentation that there was no arithmetical error in the bill of costs, which had inflated the claim by $8,500.

The Court also found errors in awarding costs for appearances where no costs were ordered and for excessive preparation time.

The appeal was allowed and the costs award was reduced to $25,000.

The plaintiff corporation commenced an action while dissolved.

The defendants moved for security for costs, and the Master dismissed the action as a nullity because the plaintiff was dissolved when the action was commenced, despite the plaintiff obtaining Articles of Revival before the Master rendered his decision.

On appeal, the Divisional Court held that under s. 241(5) of the Business Corporations Act, the revival deemed the corporation to have the right to bring the action as though it had not been dissolved.

The appeal was allowed and the dismissal set aside, though costs were awarded against the successful appellant due to its solicitors' delay in obtaining the revival.

On an appeal in a construction lien proceeding, the court considered whether expiry of a perfected lien under s. 46(1) of the Construction Lien Act automatically required dismissal of the entire action, including joined contract claims.

The court held that s. 46(1) mandates dismissal of the action to enforce the lien, but that s. 47(1)(d) preserves discretion to dismiss or allow continuation of non-lien claims within the same action.

Applying that interpretation, the court found the Master had exercised the discretion to dismiss the whole proceeding and that, given four years of inactivity and the absence of responding evidence, there was no arguable basis to interfere.

The appeal was allowed, the Divisional Court order was set aside, and the Master's dismissal order was reinstated.