Ryan Christopher Hauk

In CCAA proceedings arising from a major construction project, the monitor sought an order authorizing release of a contractor-specific holdback notwithstanding the continued construction of the project and the resulting technical inability to satisfy the timing requirements of the construction lien regime.

The court held that s. 11 of the CCAA gave it jurisdiction to deem compliance with statutory preconditions where doing so usefully furthered the remedial objectives of the restructuring, caused no demonstrated prejudice, and preserved the substantive rights of affected stakeholders.

The court also held that it could protect the monitor and CRO from potential personal liability under specified tax statutes for implementing the court-authorized payment, but revised the proposed wording to grant a narrower and more direct liability shield.

The holdback release order was approved with modifications, including removal of an unnecessary overlapping protection.

The moving parties, a developer and a construction manager, brought a motion under section 44(5) of the Construction Act to reduce the security posted to vacate claims for lien registered by the responding subcontractor.

The moving parties argued the subcontractor was not entitled to cost escalations due to lack of proper notice, a prior promise not to pursue such costs, and an inability to prove quantum.

The court dismissed the motion, finding that the moving parties failed to prove on a balance of probabilities that there was no reasonable basis for the lien amounts claimed.

The court held that the adequacy of notice, the binding nature of the promise, and the quantum of the claim all presented genuine issues requiring a trial.

The court denied the moving parties' request for leave to bring urgent motions to vacate claims for lien and certificates of action under section 44 of the Construction Act, finding no true urgency.

The endorsement criticizes the excessive length and lack of organization in the motion materials and highlights the improper use of the court’s urgent motion process.

However, the court allowed the moving parties a limited opportunity to proceed in writing, subject to strict conditions, to avoid jeopardizing an upcoming refinancing.

The appellant appealed a trial judgment regarding a contractual dispute over the volume of soil delivered to a construction project.

The trial judge had largely dismissed the appellant's claim for unpaid invoices, finding that the respondent was only required to pay for the actual volume of soil delivered, not the volume stated on the delivery tickets.

On appeal, the Divisional Court upheld the trial judge's findings on contractual interpretation, the adequacy of reasons, the refusal to draw an adverse inference, and the exclusion of the appellant's non-compliant expert evidence.

However, the court found a palpable and overriding error in the trial judge's calculation of damages regarding soil compaction.

The appeal was allowed in part, and damages were increased from $15,433.45 to $61,198.

The appellant condominium corporation appealed Tarion's denial of its emergency warranty claims for water leaks in the common elements.

The central issue was whether the plumbing contractor hired by the condominium to perform emergency repairs was authorized by the builder.

The Tribunal found that the contractor was not on the builder's trades list and was hired directly by the condominium for maintenance work.

Because the condominium failed to follow Tarion's emergency warranty claim process, which requires notifying the builder and allowing them 24 hours to resolve the emergency, the condominium disentitled itself to warranty coverage.

The appeal was dismissed.

The appellant brought a motion to adjourn the scheduled hearing regarding an appeal of a Director's Order requiring the removal of demolition waste.

The appellant argued that an adjournment was warranted because a third party had recently pleaded guilty to environmental charges related to the site and proposed a remediation plan.

The Tribunal dismissed the motion, finding that proceeding with the hearing was in the public interest, maintained procedural fairness, and complied with the approved procedural order, noting that the third party's guilty plea did not resolve the appellant's obligations under the Director's Order.

The Tribunal received a request to amend the dates contained in a previously issued Procedural Order regarding an appeal under the Environmental Protection Act concerning the removal of demolition waste.

The Tribunal granted the request for an extension of time and issued a revised Procedural Order to govern the processes and procedures leading up to the hearing scheduled for September 2024.

The appellant brought a motion to stay the requirements of a Director's Order pending the resolution of its appeal regarding the removal of demolition waste.

At the Case Management Conference, the Director consented to the stay, noting no concerns regarding the prohibitions in section 143(3) of the Environmental Protection Act.

The Tribunal granted the motion on consent without the need for a motion hearing.

The applicants sought relief arising from Minutes of Settlement concerning the respondents' proposed building of a new three-story house, alleging breaches related to a third-story deck/patio doors overlooking their backyard, and soil addition potentially harming their tree.

The court found no breach of the Minutes of Settlement, determining that the respondents' building plans were in "substantial compliance" with the agreed-upon Revised Zoning Drawings.

The court also found no expert evidence to substantiate the applicants' drainage or tree damage concerns and dismissed the application, noting that the parties had resolved a separate mutual right-of-way issue.

Zurich, the surety for the insolvent general contractor Bondfield, brought a motion to intervene as a party in a construction lien reference.

Zurich sought to participate in a vetting committee for the distribution of the owner's holdback among the timely lien claimants.

The court granted the motion, finding that Zurich had a direct interest in the holdback because it had made significant holdback advances to the major electrical and mechanical trades and had taken partial assignments of their lien rights.

The court ordered the timely claimants to pay Zurich's costs of $30,000.

Following a motion where the plaintiff obtained some relief on consent but had other relief dismissed, both parties sought costs.

The defendants claimed $9,500 on a partial indemnity basis, while the plaintiff sought $7,700, arguing success was divided and relying on offers to settle.

The court noted the bitter and tactical nature of the dispute and found that, given the mixed success and the plaintiff's settlement efforts, it was not fair and reasonable to award costs to either party.

No order as to costs was made.

The plaintiff contractor brought a motion for interlocutory relief under the Construction Lien Act, seeking an order requiring the defendant owners to pay a holdback amount into court, a stay of the action pending arbitration, and the appointment of an arbitrator.

The court granted the stay on consent but dismissed the requests for payment into court and the appointment of an arbitrator.

The court found that the holdback was no longer necessary to protect subcontractors as the lien period had expired, and the plaintiff already had a lien on the property.

The request to appoint an arbitrator was deemed premature as the parties had agreed to mediate first.

The defendant sought leave to appeal an order dismissing his motion to dismiss the plaintiffs' defamation action under Rule 21.01(1)(a).

The underlying action involved alleged defamatory statements made by the defendant, a condominium unit owner and former board president, about the developer.

The court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's decision that the defence of privilege involved mixed fact and law requiring a complete factual record.

The defendant brought a motion under Rule 21.01(1)(a) and Rule 21.01(3)(d) of the Rules of Civil Procedure seeking dismissal of a defamation action commenced by developers of a condominium project.

The defendant argued that the alleged statements were protected by absolute or qualified privilege and that the claim was frivolous, vexatious, or an abuse of process.

The court held that Rule 21 cannot be used by a defendant to prove the success of a defence such as privilege; rather, the rule is intended to determine whether a plaintiff’s claim is plainly and obviously untenable in law.

The motion also failed because the defendant provided no evidentiary record supporting the abuse-of-process argument.

The court dismissed the motion and allowed the defamation action to proceed.

The plaintiff sought an adjournment of the defendants' scheduled summary judgment motion to allow it to move on refusals from a Rule 39.03 examination of a non-party competitor.

The court denied the adjournment, finding that the plaintiff had failed to disclose its intention to conduct the examination when scheduling the motion, and that the examination itself was a disproportionate fishing expedition unsupported by evidence.

Applying the culture shift mandated by Hryniak, the court held that the defendants were entitled to have their motion heard without further delay.

The plaintiff sued the defendants, alleging they disclosed confidential information, including unit credit prices and site fill capacity, to competitors.

The defendants moved for summary judgment.

The court found no evidence to support the plaintiff's allegations of breach of confidence and noted the plaintiff failed to call key witnesses or provide evidence beyond mere supposition.

The action was dismissed.

The applicant brought a contempt motion and sought ancillary relief arising from an earlier order requiring the condominium corporation to take reasonable steps to ensure her quiet enjoyment, while also asking the court to adjudicate damages within the application.

The court held that the damages claim should proceed by action because the same claim was asserted in a companion action and proper adjudication required the participation of all relevant defendants and related crossclaims.

Applying the civil contempt standard, the court found no deliberate or wilful breach of the prior order beyond a reasonable doubt, particularly because the complained-of post-2013 noise was consistent with ordinary residential living.

The contempt motion was dismissed.

The respondent was awarded $20,000 in costs on the motion.

Following a judgment awarding the respondents their costs of the appeal on a partial indemnity scale, the court reviewed the parties' written submissions.

The court fixed the respondents' costs of the appeal at $45,000, inclusive of disbursements and all applicable taxes.

The respondent, a former equity partner of the appellant accounting firm, withdrew from the partnership to join a competitor.

The partnership agreement required a withdrawing partner to pay liquidated damages equal to two times their 'Permanent Capital'.

The appellants argued the permanent capital should be based on the partner's 'Anchor Capital' which included shareholder loans, while the respondent argued it was limited to the $10,000 fixed in his capital account following a capital conversion.

The trial judge agreed with the respondent, fixing liquidated damages at $20,000 and ordering the appellants to repay the respondent's shareholder loan and other entitlements.

The Court of Appeal upheld the trial judge's interpretation of the partnership agreement, finding no palpable and overriding error, but allowed the appeal in part to set aside a small award for management fees that lacked evidentiary support.

The appellants appealed a summary judgment ordering the release of a statutory holdback to the respondent subcontractor.

The appellants argued the respondent failed to provide required close-out documentation, including as-built drawings and an engineering certificate, and that the matter should have proceeded to trial.

The Court of Appeal dismissed the appeal, finding the application judge properly applied the summary judgment standard and correctly concluded the required documents had been provided.

The court ordered the immediate payout of the holdback funds and dismissed a motion to introduce fresh evidence.