Ryan Hauk

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 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 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 plaintiffs commenced an action in Ontario against Russian defendants and attempted to serve them in Russia pursuant to the Hague Service Convention.

The Russian Ministry of Justice refused to facilitate service, citing sovereignty or security concerns under Article 13 of the Convention.

The plaintiffs obtained an order from a Master validating service under Rule 16.08 of the Rules of Civil Procedure.

The defendants appealed.

The Superior Court of Justice allowed the appeal, holding that Rule 17.05(3) implements the Convention's exclusive methods for service in a contracting state, precluding the application of Rules 16.04 and 16.08 to substitute or validate service.