S. Fairley

Following a lengthy contract dispute where the defendant was wholly successful, the defendant sought costs against the plaintiff.

The court found that the plaintiff had registered a grossly inflated construction lien, failed to make or accept reasonable settlement offers, refused to admit facts, and engaged in spoliation of evidence.

Applying the costs provisions of the Construction Lien Act and the Rules of Civil Procedure, the court awarded the defendant substantial indemnity costs of $135,000.

The court declined to hold the plaintiff's principal personally liable for costs as he was not a party to the proceeding and no finding of fraud was made against him.

The plaintiff subcontractor sued the defendant contractor for unpaid invoices and registered a construction lien regarding a school gymnasium project.

The defendant counterclaimed for back charges due to the plaintiff's delays and failure to complete the contracted steel fabrication and erection work.

The court found the plaintiff breached the contract by failing to perform the work on schedule, entitling the defendant to back charges.

The court awarded the plaintiff a reduced amount of $20,000, calculated as the remaining contract balance less the defendant's proven back charges.

The plaintiff sought a declaration of sole beneficial ownership of a residential property, alleging her brother, the defendant, held title as a bare trustee.

The defendant counter-claimed for a declaration of co-ownership as a joint tenant with a beneficial interest.

The court found the defendant to be more credible, concluding that he acquired a beneficial interest in the property by purchasing the ex-boyfriend's share, assuming the mortgage, and making significant contributions to improvements and arrears, which were inconsistent with acting as a bare trustee or making gratuitous payments.

The court dismissed the plaintiff's claim and granted the defendant's declaration of 50% legal and beneficial ownership, subject to an accounting.

The parties disputed the ownership of a portion of beachfront land and an isthmus connecting a small island to the mainland in Georgian Bay.

The respondent held paper title to the disputed land, which had ambulatory boundaries that changed with the water level.

The applicant, who owned the island, claimed possessory title or a prescriptive easement over the disputed land, arguing that she and her predecessors had used it continuously for access and recreation under the mistaken belief that they owned it.

The court found that the applicant had established adverse possession, as the possession was open, notorious, and continuous for the requisite statutory period prior to the land's conversion to the Land Titles system.

The court also held that occasional inundation of the land by water did not interrupt the limitation period for adverse possession of riparian property.

The respondent's expert witness evidence was rejected due to bias.

The applicant was declared the owner in fee simple of the disputed land.

During a property dispute trial, the possessory claimant brought a mid‑trial motion seeking production of email communications and notes exchanged between the objector’s counsel and the objector’s expert surveyor.

The court found that the communications were relevant to assessing whether the expert had abandoned the role of an independent expert and instead acted as an advocate for the retaining party.

Claims of solicitor‑client privilege, litigation privilege, and the lawyer’s work product doctrine were rejected for most communications because the materials were probative of expert bias and formed part of the factual foundation for the expert’s opinions.

The court held that exposing potential expert bias justified disclosure notwithstanding privilege claims.

The motion was granted and the communications were admitted into evidence on a voir dire.

In a new trial ordered following a successful appeal concerning a possessory claim and an appeal under the Land Titles Act, the objector sought to read portions of the claimant’s prior cross‑examination transcript from the original trial into evidence.

The claimant objected on the basis that prior procedural orders required lay witnesses to testify viva voce and did not authorize the use of her previous testimony.

The court held that the Rules of Civil Procedure governed the proceeding rather than the evidentiary flexibility permitted under the Land Titles Act or the Statutory Powers Procedure Act.

The proposed transcript excerpts could only be used for impeachment and should have been put to the witness during cross‑examination in accordance with the rule in Browne v. Dunn and the Ontario Evidence Act.

As the statutory and common‑law requirements for admitting such evidence were not satisfied, the motion to read in the transcript evidence was dismissed.

The defendant moved to set aside a default judgment and sought leave to file a statement of defence and counterclaim, or alternatively to stay enforcement of the judgment pending determination of a counterclaim alleging deficiencies in contractual work.

The court found no evidence that the defendant intended to defend the action when the defence was due and noted repeated warnings and follow-ups from the plaintiff before default judgment was obtained.

The alleged deficiencies were not raised until months after judgment and enforcement efforts.

Applying the principles governing motions to set aside default judgment, the court held the defendant had effectively made a conscious decision not to participate in the litigation and had not demonstrated a meritorious defence at the relevant time.

The default judgment remained enforceable, although the defendant’s counterclaim could proceed independently.

A status Indian respondent challenged the constitutionality of Section 41 of the Family Responsibility and Support Arrears Enforcement Act, 1996 (FRSEAA), arguing that enforcement proceedings by the Director against him for spousal support arrears violated his rights under the Indian Act.

The respondent contended that the enforcement measures impaired his vested legal rights as a status Indian under Sections 29 and 89(1) of the Indian Act.

The court dismissed the constitutional challenge, finding that the Director's enforcement actions were authorized by Section 89(1) of the Indian Act because the Director acts "for the benefit of" the support recipient, who was also a status Indian.

The court also found that Section 88 of the Indian Act permitted the application of the provincial FRSEAA as a law of general application.

The possessory claimant brought a motion to stay a new trial or, in the alternative, for security for costs, following a successful appeal that ordered a re-trial due to apprehension of judicial bias.

The objector brought a cross-motion for security for costs.

The court noted that both parties had achieved parallel success in previous proceedings and faced similar risks of losing their properties to pay litigation costs.

Finding that a stay would deny access to justice and that neither party should be given an advantage under the rules, the court dismissed both the motion and the cross-motion.

The defendants moved to set aside a default judgment obtained in a mortgage action.

Applying the three-part test under Rule 19.08 of the Rules of Civil Procedure—delay, explanation for default, and arguable defence—the court found the circumstances surrounding service explained the default and accepted the delay as largely attributable to litigation scheduling and negotiations.

However, the defendants failed to demonstrate a defence on the merits to the existence of the debt under the registered mortgage.

The court declined to set aside the default judgment but ordered a trial of an issue in the nature of a reference to address apportionment issues arising from the broader financial relationship between the parties.