Roderick W. Johansen

Two defendants appealed a trial judgment awarding substantial damages for breach of fuel-delivery contracts and for inducing breach.

The court upheld findings that Remote breached contract and good faith duties, that Wasaya induced the breach, and that mitigation findings were available on the record.

However, it held the trial judge erred by not applying the contractual limitation clause, reducing Remote’s liability to $50,000 while leaving Wasaya liable for $856,458.

The plaintiff, Wilderness North Air, was awarded a contract by Hydro One Remote Communities Inc. (Remotes) to be the primary vendor for the delivery of diesel fuel by air to five remote First Nations communities.

After the contract was awarded, several First Nations communities issued Band Council Resolutions (BCRs) stating they would only accept fuel delivered by Wasaya Airways, a First Nations-owned airline that had been unsuccessful in the bidding process.

Remotes subsequently cancelled Wilderness's purchase orders for four of the communities and awarded the work to Wasaya and another carrier.

Wilderness sued Remotes for breach of contract and breach of the duty of good faith, and sued Wasaya for inducing breach of contract.

The Superior Court of Justice found that Remotes breached the contract and its duty of good faith, and that Wasaya induced the breach.

Wilderness was awarded $2,718,988 in damages, with Wasaya jointly and severally liable for $856,458.

This motion for directions concerned the release of garnished funds held by the City of Thunder Bay.

The Plaintiff/Creditor, Mirmil Products, had a judgment against the Defendant/Debtor, Man-Shield (NWO) Construction Inc. (Manshield).

Manshield challenged the garnishment, arguing the funds were owed to a different entity, MBuilds (NWO) Limited Partnership, or were subject to a statutory trust under the Construction Act.

The court found that the City owed the funds to Manshield, not MBuilds, and that the corporate name change did not alter the entity's identity or obligations.

The court also dismissed the trust argument, finding it irrelevant as all subtrades were paid.

The motion for directions was granted, ordering the garnished funds to be paid to Mirmil Products.

The plaintiff, 1401380 Ontario Limited O/A Wilderness North Air, brought a motion to amend its statement of claim to add Wasaya Petroleum LP as a party defendant and to compel Wasaya Airways LP to answer a refused discovery question.

The court dismissed both motions, finding that the limitation period for adding Wasaya Petroleum LP had expired.

The court determined that the plaintiff had sufficient information to discover the claim against Wasaya Petroleum LP much earlier than asserted, specifically by September 2016, and failed to provide a reasonable explanation for the delay.

Consequently, adding the party was prohibited under section 21(1) of the Limitations Act, 2002.

The discovery question was deemed irrelevant given the dismissal of the motion to amend.

This endorsement addresses costs arising from the Plaintiff's motion for particulars and the Defendants' motion to compel cross-examination.

The motion for particulars was resolved on consent, with the Plaintiff ultimately obtaining clarity on the scope of serious allegations made against him in the Statement of Defence and Counterclaim.

The court found the Defendants' conduct necessitated the motion for particulars and awarded the Plaintiff $7,500 in costs.

Regarding the cross-examination motion, the court found divided success, noting that while cross-examination occurred, its scope exceeded the court's order and provided limited assistance to the particulars motion.

Consequently, no costs were awarded for the cross-examination motion.

The plaintiff, Canadian Lakehead Exhibition (CLE), brought a motion seeking to find the defendant, 1723022 Ontario Ltd. General Partner of The Sportsdome Limited Partnership ("Sportsdome"), and its president, Robert Zanette, in contempt of a January 20, 2022 order.

The original order required production of specific financial and insurance documents and attendance at an examination in aid of execution.

The court found Sportsdome and Zanette in contempt, satisfying the three-part test for civil contempt (clear order, actual knowledge, and intentional breach) beyond a reasonable doubt.

They were given 30 days to purge the contempt, failing which CLE could move to the penalty phase, and costs were awarded to CLE on a substantial indemnity basis.

The plaintiff brought a motion for particulars regarding allegations of fraud and breach of fiduciary duty in the defendants' counterclaim.

In support, the plaintiff filed an affidavit stating he had no knowledge of the allegations.

The defendants sought to cross-examine the plaintiff on his affidavit, which the plaintiff resisted as an abuse of process and premature discovery.

The court held that while there is a prima facie right to cross-examine on an affidavit, the court has discretion to limit it to prevent a fishing expedition.

The court permitted the cross-examination but strictly limited its scope to the plaintiff's knowledge of the particulars sought.

The plaintiff, a general contractor, sought an injunction to prevent Tarion Warranty Corporation from drawing on two performance bonds after Tarion terminated the plaintiff from a repair project for a leaking condominium parking garage.

The plaintiff argued the bonds were conditional payment obligations subject to a repair agreement.

The court found the bonds were autonomous demand bonds, meaning Tarion's right to call on them was independent of the underlying contract.

Applying the Supreme Court's decision in Angelica-Whitewear, the court held that an injunction against a demand bond requires a strong prima facie case of fraud.

As the plaintiff did not allege fraud, the motion was dismissed.

The court also noted the plaintiff would fail the traditional RJR-MacDonald test for injunctive relief.

The appellant appealed the quantum of damages awarded in its action for breach of contract regarding contaminated scaffolding equipment.

The trial judge had awarded damages based on a finding that 40% of the scaffolding had to be scrapped due to contamination.

The appellant argued that 100% of the scaffolding should have been deemed valueless.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the conflicting expert evidence.

This judgment addresses two motions within a garnishment proceeding.

First, M Builds (NWO) Limited Partnership sought to be added as a co-defendant or joined as a necessary party to the garnishment, which was granted for the purpose of filing materials and making submissions.

Second, 1022403 Ontario Ltd. (Mirmil), a judgment creditor, moved for security for costs against Man-Shield (NWO) Construction Inc. (MS).

The court found Mirmil had a prima facie entitlement to security for costs under Rule 56.01(1)(c).

MS failed to demonstrate sufficient assets or a good chance of success on the merits, given its inconsistent positions regarding the ownership of garnished funds and the City of Thunder Bay's evidence.

The court also rejected MS's argument that the funds were subject to a trust under the Construction Act, as section 7 does not apply to municipalities and section 8 was not engaged due to subcontractors being paid.

Consequently, MS was ordered to post security for costs totaling $12,000.

Following a trial regarding scaffolding rental and demobilization expenses, the plaintiff obtained judgment for $107,091.30 out of a claimed $471,436.41.

The plaintiff sought partial indemnity costs of $158,096.83, while the defendant argued for no costs due to divided success.

The court found the defendant was the more successful party at trial, as the plaintiff failed on the major issue of demobilization expenses and recovered less than a quarter of its claim.

As the plaintiff did not beat any of its settlement offers, the court ordered each side to bear its own costs.

The appellant appealed the property tax assessment of a residential property for the 2018 and 2019 taxation years, arguing the current value assessment of $936,000 was too high.

The Assessment Review Board dismissed deemed appeals for 2016 and 2017 because the appellant failed to file the mandatory Requests for Reconsideration.

For the 2018 and 2019 years, the Board reviewed comparable sales evidence and found that the two most comparable properties had adjusted sale prices of $821,438 and $640,288.

Taking the median of these two properties, the Board reduced the current value assessment of the subject property to $731,000.

The plaintiff, a scaffolding supplier, sued the defendant, a forest products manufacturer, for breach of contract after the defendant terminated its services.

The plaintiff claimed damages for unpaid demobilization costs and for scaffolding equipment that was allegedly contaminated and had to be scrapped.

The court found that there was no agreement for the defendant to pay demobilization costs, dismissing that portion of the claim.

However, the court found the defendant liable for the contaminated equipment, assessing damages based on 40 percent of the equipment being scrapped, and awarded the plaintiff $107,091.30.

The appellant sought to appeal an order refusing a stay of summary judgment.

The Divisional Court held that under s. 71(3) of the Construction Lien Act, no appeal lies from an interlocutory order.

Citing Court of Appeal precedent, the court confirmed that an order refusing a stay of summary judgment is procedural and therefore interlocutory.

Consequently, the court lacked jurisdiction to hear the matter, and the appeal was dismissed with costs.

The appellant general contractor appealed a trial judgment awarding $142,553.33 to the respondent subcontractor in a construction lien action.

The appellant argued the respondent abandoned the project when faced with a payment dispute.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the respondent had fully performed its obligations and did not abandon the contract, but rather stopped work due to the appellant's material breach in refusing to pay.

Following the dismissal of the respondent's motion for security for costs of a pending appeal, the successful appellant sought costs of $12,255.13 on a partial indemnity basis.

The respondent argued the amount was excessive and sought to have costs fixed at $6,506.26, payable in any event of the cause.

The court found the appellant's claimed hours excessive given the lack of complexity and brevity of the materials, fixing costs at $7,500 inclusive.

The court declined to order costs payable in any event of the cause, applying the presumptive rule that interlocutory costs are payable within 30 days.

The plaintiff, AGC Flat Glass North America Ltd., moved for summary judgment on its construction lien claim against the defendants, Man-Shield (NWO) Construction Inc. et al., concerning a condominium development.

The court granted partial summary judgment to AGC for specific amounts related to the windows and doors subcontract ($84,201.80), a glass shower enclosure extra ($53,839.42), and mirrors and hollow glazing extras ($19,484.07).

However, the court found genuine issues for trial regarding alleged "walking glass" deficiencies in guardrails and the quantum of a caulking extra, necessitating mini-trials for these two issues.

The court rejected the respondent's general arguments for delaying payment based on counterclaims and "flow through" claims from the owner, emphasizing the need for parties to present their best evidence on summary judgment motions.

The appellants, operators of two gravel pits in the Municipality of Shuniah, appealed a decision dismissing their application to declare illegal a series of municipal by-laws regulating vehicle weight on municipal roads.

The appellants argued the by-laws were enacted in bad faith because they were not given actual personal notice of the Municipality's intention to pass them and because the by-laws prevented their aggregate extraction businesses from operating in a commercially viable manner.

The Court of Appeal upheld the application judge's dismissal, finding no requirement for personal notice in the circumstances and no evidence that the by-laws precluded commercial operation of the pits.

The applicant sought a declaration that its relationship with the respondents was a landlord-tenant relationship under the Commercial Tenancies Act, allowing it to remove its equipment from the respondents' premises.

The respondents argued the relationship was a joint business venture.

The court found that the parties had entered into two separate agreements—an operating agreement and a lease—and that the arrangement lacked the requisite elements of a joint venture, such as mutual control and joint property interest.

The court declared that a commercial tenancy existed and ordered the application to be tried together with the respondents' civil action for damages.

The plaintiff, The Floor Show Ltd. (TFS), brought motions for partial summary judgment in two actions against the defendant Man-Shield (NWO) Construction Inc. (MS) concerning unpaid construction contracts for two condominium projects (Allure and Aurora).

MS asserted counterclaims for delay, back-charges for floor protection and cleanup, and owner damage claims, and relied on a "pay when paid" clause.

The court granted partial summary judgment to TFS for significant amounts, finding most of MS's counterclaims lacked merit or particulars, and that the "pay when paid" clause was inapplicable due to MS's termination from the project.

Some discrete issues regarding quantum of upgrades and extras were directed to trial.