Robert Sniderman

The appellant, Cipponeri Construction Services Inc. (CCSI), appealed a motion judge's order dismissing its 2020 action against Westin Homes Ltd. and Michael Orsi as an abuse of process.

The 2020 action was commenced to preserve a limitation period for a claim against Westin that had been ineffectively asserted in a prior 2018 counterclaim.

The Court of Appeal found the motion judge erred in dismissing the 2020 action against Westin as an abuse of process, as it was initiated to preserve a limitation period.

The court varied the order, staying the 2020 action against Westin, requiring CCSI to promptly move to amend the 2018 counterclaim to add itself as a plaintiff, and stipulating that no limitation period defense prior to March 16, 2020, would be asserted.

The dismissal against Orsi personally was upheld.

The appellants, found in civil contempt for disobeying a court order regarding property use and trespassing, appealed their $1,000,000 fine.

They sought to introduce fresh evidence, alleging ineffective assistance of trial counsel.

The Court of Appeal dismissed the application for fresh evidence, finding it lacked due diligence and would not have affected the outcome.

The court upheld the sentencing judge's findings that the contempt was flagrant, protracted, deliberate, and profitable, and that the fine was fit, dismissing the appeal.

This endorsement addresses two procedural issues arising from the appellants' motion to adduce fresh evidence on appeal, specifically concerning an allegation of ineffective assistance of counsel.

The first issue involved the production of two recordings made by former counsel, which the appellants argued were inadmissible due to a breach of professional conduct rules.

The court affirmed that a breach of professional conduct rules does not automatically render evidence inadmissible in civil proceedings and ordered the production of the recordings, subject to conditions for their use.

The second issue concerned the standing of former counsel to file evidence and a factum.

The court granted former counsel limited leave to intervene as an added party, allowing them to file a responding factum on the specific issue of whether ineffective assistance of counsel is a valid ground of appeal in civil proceedings.

Following a summary judgment in favour of the plaintiff subcontractor against the defendant general contractor, the court determined the costs of the motion.

The plaintiff had made a settlement offer that it beat at the hearing, entitling it to substantial indemnity costs from the date of the offer.

The court rejected the defendant's argument that the simplified procedure costs cap applied, noting the parties had engaged in a hybrid process outside of Rule 76.

The plaintiff was awarded total costs of $62,659.28.

The plaintiff subcontractor brought a motion for summary judgment against the defendant general contractor for unpaid invoices totaling $103,650.53 and for breach of trust under the Construction Act.

The court granted summary judgment for the outstanding debt, rejecting the defendant's argument that a 'pay when paid' progressive payment model applied, as the contract clearly stated payment was due 30 days after invoicing.

The court adjourned the breach of trust claim to a case conference, noting the plaintiff could not establish the absence of a genuine issue for trial because the defendant had failed to provide a full accounting of trust funds.

The plaintiff municipality brought a motion to hold the defendants in contempt of a 2019 court order requiring them to remove an encroaching fence and cease illegal business operations and storage on specific properties.

The defendants admitted non-compliance but argued that the COVID-19 pandemic and financial hardship prevented them from obeying the order.

The court rejected this defence, finding that financial hardship does not excuse deliberate disobedience of a court order.

The court found the defendants in contempt beyond a reasonable doubt regarding two of the properties and the fence, and directed the parties to schedule a sentencing hearing.

The defendant brought a motion to amend its defence and counterclaim and to add a third party claim, alleging that the plaintiff's asset sale violated the Fraudulent Conveyances Act and the Assignments and Preferences Act.

The plaintiff opposed the motion, arguing that the proposed amendments and third party claim were statute-barred.

The court found that the defendant knew or ought to have known the material facts underlying the proposed claims more than two years before bringing the motion.

The court dismissed the motion, holding that the proposed claims were statute-barred and that adding them would cause non-compensable prejudice to the impecunious plaintiff.