Robert C. Harason

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 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.

Following a motion concerning implementation of a discovery plan and production of documents, the court addressed the issue of costs between the plaintiff and one defendant insurer after the other defendants resolved costs by agreement.

The plaintiff sought partial indemnity costs, arguing substantial success, while the insurer contended it was the successful party and sought its own costs.

The court found that neither party was measurably more successful overall.

Although the insurer prevailed on the principal production issues, the motion itself was necessary to resolve outstanding discovery matters.

The court concluded that fairness required no order as to costs between the plaintiff and the insurer.

The plaintiff subcontractor brought a motion seeking implementation of a discovery plan and further production of documents in an action arising from unpaid work on a construction project.

The claim involved alleged entitlement to payment under a Labour and Material Payment Bond and claims of negligence, misrepresentation, and breach of duty to disclose against the owner, its supervisor, and the surety.

The court applied the relevance and proportionality principles under Rules 30.02 and 29.2 of the Rules of Civil Procedure to determine the scope of documentary production.

Certain categories of documents relating to the issuance of bonds, other creditors, and general practices under the Construction Lien Act were found irrelevant and need not be produced, while documents relating to payments to the contractor, certain daily project reports, and materials relevant to the surety’s prejudice defence were ordered produced.

Claims of solicitor‑client privilege over redacted portions of internal communications were upheld.

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.

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 defendant appealed an order dismissing its motion to declare the plaintiff's construction liens expired.

The motion judge had ruled that the plaintiff's Reply and the defendant's Amended Statement of Defence were nullities, and that pleadings were closed, allowing the plaintiff to set the action down for trial within the statutory deadline.

The Divisional Court dismissed the appeal for lack of jurisdiction, finding that the motion judge's orders did not finally determine any substantive rights and were therefore interlocutory.

Under section 71(3)(b) of the Construction Lien Act, no appeal lies from an interlocutory order.

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.