Sharon Vogel

The responding parties brought an application seeking declaratory relief regarding the moving parties' alleged failure to retain an operator for a light rail transit project.

The moving parties brought a motion to stay the application in favour of arbitration, relying on a dispute resolution clause in prior Minutes of Settlement.

The court granted the stay, applying the competence-competence principle and finding that the moving parties established an arguable case that the dispute fell within the arbitration agreement.

The court also found no undue delay by the moving parties in seeking the stay.

This is a costs endorsement from the Court of Appeal for Ontario, following an appeal where the lower court's judgment and costs order were set aside and the application remitted for rehearing.

The parties were unable to agree on the disposition of the original application costs.

The Court of Appeal determined that the fairest approach was to leave the issue of the application costs to the trier of fact on the rehearing, whether before a Superior Court judge or in an arbitral process.

Appeal costs had previously been awarded to the appellants.

This is an appeal concerning the interpretation of a complex project agreement for the Eglinton Crosstown LRT in the context of the COVID-19 pandemic.

The application judge had found that a specific contractual provision (s. 62.1(c)) requiring a "Variation Enquiry" was triggered by an internal email from the Crown agencies to their own staff, which was never sent to the consortium.

The Court of Appeal found that the application judge made a palpable and overriding error in concluding that this internal email constituted notification to the consortium.

The appeal was allowed, the original judgment set aside, and the application remitted to the Superior Court for a rehearing to consider other arguments, including good faith and the indivisibility of the Crown, which the application judge had not addressed.

The applicant sought judgment for $7.45 million pursuant to a settlement agreement.

The respondent claimed a right of set-off for insurance deductibles under the construction contract's owner-controlled insurance policies.

The applicant argued that a release executed as part of the settlement extinguished the respondent's right to claim the deductibles.

The court interpreted the release in its factual matrix and concluded it was limited to the five specific disputes settled, and did not terminate the applicant's ongoing obligation to pay deductibles under the continuing contract.

The application was dismissed.

The applicant, Freyssinet Canada Limitée, brought a Rule 21 motion to determine a question of law regarding whether Parkway Infrastructure Constructors (PIC) is precluded from recovering damages claimed in its counterclaim, which are also claimed against Builder's Risk insurers.

Freyssinet argued that a covenant to insure in the Project Agreement, and potentially an implied term in the Subcontract, allocated risk away from it.

The court dismissed the motion, finding that material facts were in dispute, the enforceability and interpretation of the Subcontract were contested, and a full factual record was necessary for proper adjudication.

The court also found no legal bar to PIC's counterclaim, noting that PIC was not acting as an insurer bringing a subrogated claim against its own insured.

Chartis Insurance Company of Canada moved for partial summary judgment to dismiss a claim by Walsh Construction/Bondfield Partnership for payment on a performance bond, arguing the action was statute-barred.

The court found that determining whether the claim was statute-barred required extensive factual findings regarding the subcontractor's actual default, proper notice, and cure of defaults, which constituted genuine issues requiring a trial.

The motion was dismissed due to the complexity of the factual matrix and the risk of inconsistent findings with related construction lien actions involving other parties.