Roderick W. Johansen

The defendants moved for the release of cash posted into court as security to vacate a construction lien under s. 44 of the Construction Lien Act.

The parties were engaged in a private arbitration to resolve their disputes, and the arbitrator had issued a partial award but deferred the determination of costs and counterclaims until the conclusion of the arbitration.

The Superior Court dismissed the motion as premature, finding that competing claims against the security remained unresolved and that releasing funds before the arbitration concluded would be prejudicial.

The appellant appealed a trial judgment dismissing his claim for wrongful (constructive) dismissal and related relief.

The Court of Appeal upheld the trial judge's finding that the employment agreement was frustrated, rejecting the appellant's arguments regarding workplace harassment and his inability to return to work within a reasonable time.

The court also rejected the appellant's argument that he was constructively dismissed due to termination of employment benefits, finding that the benefits terminated on the same date the employment contract was frustrated.

The appeal was dismissed with costs awarded to the respondent.

An insolvent mining company, Dianor Resources Inc., had mining claims subject to gross overriding royalties (GORs) in favour of 2350614 Ontario Inc. (235Co).

A receiver was appointed and approved a sale of the mining claims to Third Eye Capital Corporation.

The motion judge granted a vesting order that purported to extinguish the GORs, finding they did not constitute interests in land.

The Court of Appeal reversed this finding, holding that the GORs were interests in land under the test established in Bank of Montreal v. Dynex Petroleum Ltd. The court found the motion judge made three legal errors: failing to examine the parties' intentions holistically, requiring the royalty holder to have entry rights, and mischaracterizing the interest from which the royalty was carved.

The court did not finally determine whether the motion judge had jurisdiction to extinguish the GORs and required further submissions on this issue and on remedies.

A commercial tenant sought a declaration under the Commercial Tenancies Act that a landlord had wrongfully distrained its assets and equipment after terminating the tenancy by changing the locks, or alternatively that the distraint was excessive.

The application judge found that changing the locks did not terminate the lease because the tenant retained access to the premises during business hours and by arrangement after hours.

The application judge ordered a trial to determine whether the distraint was excessive, as the parties had not provided sufficient particularized evidence of the value of the distrained equipment or the exact amount of rent arrears.

The Court of Appeal upheld the application judge's decision, finding that while a summary determination was possible on the lease termination issue, the parties had not presented sufficient evidence to determine the amount of rent outstanding, the value of the distrained goods, or any damages.

The defendant, Melissa Harrison, moved for summary judgment to dismiss the plaintiff's construction lien claim against her personally.

The plaintiff alleged an oral contract for construction services was made exclusively with Harrison.

Harrison argued the contract was with her corporation, 2427087 Ontario Inc. The court found that based on the objective evidence, including a confidentiality agreement and correspondence, the plaintiff was on notice that it was dealing with a corporate entity.

The court granted the motion and dismissed the claim against Harrison personally.

The respondent, a flooring contractor, was hired by the appellant general contractor to install sheet vinyl flooring at a long-term care facility.

When the respondent identified deficiencies in the sub-floor structure that prevented proper installation, the appellant refused to remedy the defects and instead directed the respondent to attempt a temporary fix.

After the temporary fix failed and the project architect required the flooring to be removed and replaced, the respondent refused to continue without payment for previous work and relief from warranty obligations.

The appellant hired another contractor to complete the work and counterclaimed for abandonment.

The trial judge found the respondent unable to perform due to sub-floor defects that were the appellant's responsibility to remedy, awarded damages for breach of contract, and dismissed the counterclaim.

The appellant appealed, and the respondent cross-appealed on damages assessment.

The defendants, Man-Shield (NWO) Construction Inc. and Manshield (NWO) Construction, Inc., brought an application to stay multiple construction lien actions in favour of arbitration.

The subcontractors and owners opposed the stay.

The court dismissed the application, finding that Man-Shield had unduly delayed in seeking the stay, as measured from the date the statements of claim were issued.

The court also found Man-Shield estopped by its conduct and that granting a stay would create more uncertainty and delay, rather than facilitate resolution.

The court awarded costs to the plaintiff, Dan McCabe, following a trial where McCabe was found to be substantially more successful than the defendant, Finn Way General Contractor.

The plaintiff was awarded $49,451.44, while the defendant received just over $500 on its counterclaim.

The court considered the purposes of costs awards, the complexity of the issues, the parties' settlement offers, and the conduct of the litigation, including the defendant's unreasonable position in not seeking resolution.

Despite some protraction of proceedings by plaintiff's counsel, the defendant's lack of interest in settlement warranted a costs award.

A fair and reasonable award was fixed at $75,000 on a partial indemnity basis.

A subcontractor sued the general contractor for breach of contract after flooring work on a hospital project became impossible due to defects in the underlying sub-floor structure.

The subcontractor alleged the contractor failed to provide a stable and properly prepared substrate, causing telegraphing and other failures in installed sheet vinyl flooring.

The contractor counterclaimed for completion costs after terminating the subcontractor and hiring a replacement.

The court held that a contractor has an implied obligation to provide a site capable of receiving the subcontractor’s work and found the sub-floor defects, including structural movement and improper preparation, prevented successful installation.

The subcontractor did not abandon the contract; rather, the contractor breached by failing to remedy known defects and insisting the work proceed.

Damages were awarded to the subcontractor with limited set‑off for specific materials.

Competing summary judgment motions arose from acrimonious litigation following a lawyer's withdrawal from a Thunder Bay law firm and related management partnership.

The court held that summary judgment was inappropriate because multiple interrelated claims, including breach of trust, slander, defamation, and a separate substantial claim for work in progress and disbursements, would proceed regardless, creating risks of duplication and inconsistent findings.

In resolving factual matters relevant to case management, the court found the withdrawing partner did not actually leave the partnership until November 11, 2011, and that the associated family trust was required to withdraw from the management partnership on the same date.

Both summary judgment motions were dismissed and no costs were awarded.

Following a six‑day construction contract trial where the plaintiff contractor obtained damages for breach of contract, the court determined the appropriate costs award.

The successful party sought partial indemnity costs significantly higher than the amount the defendant argued was reasonable.

Applying Rule 57.01 of the Rules of Civil Procedure and established appellate guidance on reasonableness and proportionality, the court reviewed counsel’s hourly rate, time spent, success at trial, litigation conduct, and challenged disbursements.

The court found the plaintiff was substantially successful but reduced certain claimed rates and disbursements, including photocopying and unexplained charges.

A fair and reasonable partial indemnity costs award was fixed accordingly.

The defendant municipality sought leave to appeal an interlocutory injunction prohibiting public use of municipal land pending trial in a nuisance action brought by neighbouring landowners.

The court considered the test for leave under rule 62.02(4) of the Rules of Civil Procedure, which requires either conflicting authority or good reason to doubt the correctness of the order combined with broader importance.

Although no conflicting jurisprudence was shown, the court held that the scope of the injunction—effectively barring all municipal use of public land—raised serious questions regarding judicial oversight of municipal policy decisions and therefore met the “doubt the correctness” test.

Leave to appeal the injunction and the associated costs order was granted.

However, the court declined to stay the injunction pending appeal, finding no irreparable harm and that the balance of convenience favoured maintaining the order.

The plaintiff general contractor brought an action for breach of contract against the defendant subcontractor after the defendant abandoned a hospital construction project.

The court found that the subcontracts incorporated standard construction terms by reference and included both the hospital addition and kitchen renovations.

The court held that the defendant was not entitled to abandon the project and was in breach of contract.

The plaintiff was awarded $372,829.61 in damages for the reasonable costs incurred to complete the defendant's unfinished work.

The defendant and third party sought an order bifurcating the trial of the main action and the third party claim arising from a construction tender dispute relating to baggage handling infrastructure at an airport.

The plaintiff opposed the motion, arguing that the rules presume the main action and third party claim will be tried together and that the factual issues overlap.

The court held that the moving parties had not sought leave to bring the motion after the action had been set down for trial, which alone justified dismissal.

The court further found that the claims shared common factual underpinnings concerning the tendering process and that bifurcation would create inefficiencies and risk inconsistent findings.

The motion to try the third party claim separately was dismissed.

The appellant, a dependent contractor managing cattle auctions for the respondent Association, appealed the dismissal of his breach of contract claim following his termination.

The trial judge found the appellant had repudiated the contract through insubordination, refusal to work with the Association's President, and making unfounded allegations of fraud.

The Court of Appeal dismissed the appeal, holding that the trial judge properly applied the contextual approach to assess the misconduct and correctly concluded that the appellant's actions struck at the heart of the employment relationship, justifying termination without warning.

Following dismissal of a summary judgment motion brought by the defendant, the court determined the appropriate costs award for the successful plaintiff.

The plaintiff sought substantial indemnity costs relying on an offer to settle and the complexity of issues involving trust funds under the Construction Lien Act and limitation periods.

The court held the offer did not meet the criteria of Rule 49.10 and found no unreasonable conduct justifying substantial indemnity costs.

Emphasizing proportionality, reasonableness, and the amount in dispute, the court reduced the requested amount.

Costs were awarded to the successful plaintiff in the sum of $10,500 inclusive of disbursements and HST.

Following the dismissal of a motion effectively seeking partial summary judgment, the court determined the appropriate costs award.

The responding party sought costs on a substantial indemnity basis under Rule 20.06 of the Rules of Civil Procedure, alleging unreasonable conduct in bringing the motion.

The court found the motion was not brought in bad faith or for delay, but that costs should follow the event on a partial indemnity scale.

Applying the reasonableness principles from appellate authority on costs, the court reduced the amount claimed due to excessive research time and fixed costs at a reasonable amount.

A mortgage lender brought a motion for summary judgment dismissing a contractor’s claim seeking a declaration that holdback funds from mortgage advances were held in trust for the contractor under the Construction Lien Act.

The court held that although the mortgagee was not obligated under the Act to maintain a statutory holdback because it was not a “payer,” the retained funds constituted trust funds for the contractor’s benefit.

The funds were deemed “received” by the property owner for the purposes of s. 7(1) even though they were held in trust by the lender’s solicitor.

The court also rejected limitation and res judicata defences, finding the claim was discovered only when the lender refused payment and that the earlier lien action involved different parties and causes of action.

The motion for summary judgment was dismissed.

The moving party contractor sought partial summary judgment declaring that funds held by the owner constituted trust monies under the Construction Lien Act and requested immediate payment.

The owner acknowledged the funds were subject to a statutory trust but asserted a right of set-off for alleged delay and deficiency damages under the contract.

The court examined the interaction between the trust provisions and the statutory holdback regime, holding that once lien rights of subcontractors have expired, funds may cease to be characterized as holdback and the owner may assert set-off rights against trust funds.

Because the validity and quantum of the set-off claim and the lien claim remained disputed, these issues constituted triable issues.

Partial summary judgment and immediate payment were therefore inappropriate.

The appellants appealed a judgment determining amounts payable to two law firms out of settlement funds held in trust, based on a Settlement Agreement.

The appellants argued the agreement was unfair and unreasonable under the Solicitors Act.

The Court of Appeal upheld the agreement regarding the first firm, finding it fair and reasonable, but allowed the appeal regarding the second firm, remitting the issue of fairness and reasonableness of its fees to the Superior Court of Justice because the application judge failed to provide grounds for finding the fees reasonable and did not characterize the nature of the fee arrangement.