Ronald S. Petersen

The moving party sought leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal.

Costs of $5,000 were awarded to the respondent, payable within 30 days.

The appellants appealed a decision of the Rideau Valley Conservation Authority denying an application for development on a vacant lot.

The Tribunal found that the property was located within a floodplain and subject to the Conservation Authorities Act and RVCA policies.

The appellants failed to establish that the proposed development complied with the criteria for the use of fill, safe ingress/egress, and the prohibition against new development on vacant lots of record in a floodplain.

The appeal was dismissed.

The Appellants appealed the Rideau Valley Conservation Authority's refusal to grant permission for development.

At a second Case Management Conference, the parties narrowed the issues list to five issues.

The Tribunal directed the parties to file a Procedural Order and Issues List, and scheduled a three-day video hearing.

The garnishee brought a motion to reinstate its appeal of an associate judge's order, which had been struck by the registrar for failure to file a motion confirmation form.

The creditor brought a cross-motion to strike the garnishee's affidavit and for judgment.

The court found that the Rules of Civil Procedure do not clearly require a motion confirmation form for an appeal of an interlocutory order of an associate judge, and the creditor should have consented to the reinstatement.

The court granted the motion to reinstate the appeal and dismissed the creditor's motion.

Following the dismissal of the applicant's request for leave to assess a solicitor's account, the successful respondent sought partial indemnity costs of $7,738.41.

The applicant argued for a lower amount based on proportionality and its own costs outline of $1,899.81.

The court found the applicant's outline did not reflect what a losing party could expect to pay given the extensive record and serious allegations raised.

The court awarded the respondent costs in the all-inclusive amount of $5,000.

The plaintiff subcontractor sought payment from the owner's holdback funds after the general contractor failed to pay for work on a restaurant construction project.

The court determined that the contract between the owner and general contractor was not a fixed-price contract but rather a costs-plus arrangement, meaning the owner's 10% holdback obligation was calculated based on the total actual costs incurred.

The court also found the owner was not liable for a further notice holdback because it did not receive written notice of the liens in the prescribed form.

Finally, the court interpreted trust agreements between the owner and other subcontractors who had discharged their liens, awarding them payments from the trust funds based on the specific terms of their respective agreements.

The applicant subtenant sought leave under the Solicitors Act to assess a legal account rendered by the respondent law firm to the landlord.

The applicant had agreed to pay the landlord's legal fees as part of a settlement to transfer the lease after defaulting on rent during the COVID-19 pandemic.

The court dismissed the application, finding no special circumstances to justify an assessment, as the account was not exorbitant and the parties had reached a binding settlement agreement that required full payment of the legal fees.

The moving party landlord brought a motion to quash the tenants' appeal of a Landlord and Tenant Board decision that lifted a stay on an eviction order.

The tenants had previously consented to an order to pay arrears but breached it shortly after.

The tenants requested an adjournment to obtain legal advice, which the court denied.

The court found the appeal devoid of merit, as it did not raise a question of law and a successful appeal would not change the outcome given the unappealed consent order.

The motion to quash the appeal was granted.

The appellants appealed a mid-trial Rule 21 motion decision interpreting their late father's will and codicil.

The trial judge found that the trusts created by the will, which granted a life interest to the testator's widow, did not preclude her from accumulating wealth from the trust funds.

The Court of Appeal upheld the interpretation, finding the testator intended to provide generously for his widow without requiring her to conserve the estate for the remainder beneficiaries.

The Court also rejected the appellants' argument that the trial judge lacked jurisdiction to hear the mid-trial motion, noting they had consented to the procedure, though the Court cautioned against mid-trial Rule 21 motions.

Following a Rule 21 determination in estate litigation concerning whether trust monies paid to a life tenant could be accumulated, the successful defendants sought costs of the motion on a full indemnity basis.

The court held it was appropriate to fix costs immediately because the plaintiffs intended to appeal and the balance of the trial had been adjourned indefinitely.

Applying ordinary civil costs principles rather than the traditional estate-costs approach, the court found the plaintiffs acted unreasonably by failing to pursue an early interpretation issue and by framing the matter as a damages action rather than seeking directions.

Partial indemnity costs of $15,000 all-inclusive were awarded and charged against assets being held for the plaintiffs in the estates.

Two non-parties sought costs following a summary judgment motion brought by the defendant seeking dismissal of part of the plaintiff’s claim relating to subcontractors.

The defendant had initially served the non-parties but abandoned the motion as against them shortly before the hearing.

The non-parties argued they incurred preparation costs due to the defendant’s tactical decision to include them.

The court held that it was not inappropriate for the defendant to join the non-parties at the time and noted that the non-parties did not file responding materials or participate in the motion.

In the circumstances, the court declined to award costs against the defendant.

The defendant Crown brought a motion for partial summary judgment seeking dismissal of claims advanced by a general contractor on behalf of subcontractors arising from delays in a federal construction project.

The Crown argued that the subcontractors lacked privity of contract with the owner, that the contractor had not itself suffered damages, and that the claims were barred by limitation periods and lack of contractual notice.

The court held that the contractual scheme contemplated subcontracting and permitted the contractor to pursue delay damages that included sums payable to subcontractors where liability rested with the owner.

The absence of direct contractual privity between subcontractors and the owner was not a bar where the contractor’s contract allowed recovery of such costs and the subcontract conditioned payment on recovery from the owner.

The court concluded that the subcontractor claims raised a reasonable cause of action and that genuine issues required a trial.

A preliminary issue arose on a summary judgment motion regarding whether a party could reference the opinion and recommendations of an evaluator retained by the parties during a dispute resolution process connected to a construction project.

The moving party argued that the communications were protected by mediation confidentiality under the Rules of Civil Procedure.

The court held that regardless of the label applied to the process, the communications formed part of settlement discussions intended to resolve a litigious dispute and were therefore subject to settlement privilege.

The evaluator’s reports and recommendations, and any related documentation, were found to be privileged and inadmissible.

Portions of an affidavit referencing those materials were ordered struck.

The plaintiff brought a motion to compel the defendants to answer undertakings given during examinations for discovery in a home renovation dispute.

The defendants provided most answers shortly before the hearing but argued the motion was unnecessary, precipitous, and contrary to principles of civility, particularly given the absence of a formal discovery plan.

The Master reviewed the procedural history and correspondence between counsel, finding that the plaintiff had acted reasonably and provided ample notice.

The Master ordered the defendants to provide the remaining answers and better responses to certain undertakings, and awarded the plaintiff partial indemnity costs of the motion.

The applicant was injured in a motor vehicle accident and sought a determination of catastrophic impairment.

After an initial denial by the insurer, the applicant underwent further assessments by CEMED Inc. without submitting an OCF-22 or seeking prior approval from the insurer.

The applicant subsequently applied for arbitration to recover $18,073.24 for the cost of the CEMED assessments.

The arbitrator dismissed the claim, finding that under Section 24(1.1) of the Statutory Accident Benefits Schedule, the insurer is not required to pay for an assessment if the expense is incurred before the insurer approves it.

Since the applicant failed to seek prior approval, the insurer was not liable for the costs.

On an appeal from the dismissal of a rule 21.01(3) motion, the court considered whether a corporation incorporated after the vendor's repudiation of a real estate agreement could adopt a pre-incorporation contract under s. 21 of the Business Corporations Act and sue for damages.

The court held that s. 21 replaces the common law and must be interpreted as a self-contained statutory scheme.

A contract falling within s. 21(4) remains a nascent statutory contract before adoption, and after incorporation the corporation's adoption operates retroactively to the date of the agreement.

Accepted repudiation terminated only future performance, not accrued obligations, so there remained a contract capable of adoption.

The corporation adopted the contract by commencing the action and therefore had status to enforce it.

The applicant union applied for certification in the construction industry.

The Board determined that only employees actually at work on the date of application should be counted in the bargaining unit, excluding those on lay-off or absent due to injury.

An employee filed a timely statement of desire opposing the union.

The majority of the Board found the statement to be a voluntary expression of the employee's true wishes, despite the employee retaining the employer's counsel for the hearing.

Consequently, the Board exercised its discretion to order a representation vote.

However, because the employer's business was seasonal and no employees were currently working, the Board deferred the vote until employees returned to work.

One Board member dissented, finding the statement of desire involuntary due to employer influence.