Shawn O’Connor

The plaintiff landscaping company brought a construction lien action for an unpaid balance of $19,465.00 for stonework performed at the owner's property.

The defendants counterclaimed for damages for delay and deficiencies.

At the reference, the plaintiff moved to strike portions of a defendant's affidavit that contradicted an admission made on discovery that the defendant had not corrected the alleged deficiencies.

The court refused to allow the withdrawal of the admission, finding it would cause non-compensable prejudice.

The court granted the plaintiff's claim, finding the delays were caused by the general contractor and there was no evidence of deficiencies.

The general contractor was ordered to pay the outstanding balance, and the owner was found personally liable for the $18,000.00 statutory holdback.

The counterclaim was dismissed.

The defendant owner moved under s. 44(2) of the Construction Act to vacate a $2.14 million construction lien by paying a reduced amount into court.

The plaintiff contractor opposed and cross-moved for leave to register a certificate of pending litigation (CPL).

The court allowed the defendant's motion, finding that the plaintiff's claims for contractual interest and delay damages were not lienable, and set the security amount at $1,046,647.52 based on the plaintiff's admissions.

The cross-motion for a CPL was dismissed because the Construction Act provides a complete code for lien claims, conferring no separate interest in land, and the plaintiff failed to include a claim for a CPL in its statement of claim.

The plaintiffs brought a motion to amend the Trial Record to remove the defendants' Amended Statement of Defence, and a motion to set aside a previous consent order dismissing the action against their own insurer, The Co-Operators.

The defendants brought a cross-motion for leave to amend their statement of defence to plead 'inevitable accident' due to a brain tumour.

The court granted the defendants' motion to amend, finding no non-compensable prejudice to the plaintiffs.

The court dismissed the plaintiffs' motion to amend the Trial Record and their motion to set aside the consent order, finding no material change in circumstances or mutual mistake that would justify setting aside the final order.

The individual defendants brought a motion to strike claims against them, arguing that the plaintiff's amendment to its statement of claim improperly withdrew an admission regarding the timing of alleged conduct, and that the claim failed to plead the required particulars for negligent misrepresentation.

The court held that the dates provided in the plaintiff's response to a demand for particulars were factual pleadings, not deliberate admissions, and could be amended without leave.

However, the court found that the plaintiff failed to plead the essential elements of negligent misrepresentation against the individual defendants.

The negligent misrepresentation claim was struck.

The plaintiff, a former nursing student, sued the defendants for damages after they falsely accused her of academic fraud.

The defendants brought a motion to strike the statement of claim on the basis that it disclosed no reasonable cause of action, related to an academic matter, and was an abuse of process.

The court found that while the university has broad discretion in academic matters, this does not extend to the negligent performance of an internal investigation or intentional torts.

The court struck the claims for negligence, breach of fiduciary duty, defamation, bad faith, and breach of privacy due to pleading deficiencies, but granted the plaintiff leave to amend the statement of claim.

The plaintiff brought a motion seeking to consolidate two related actions, add a new plaintiff, and amend its pleadings to include claims for defamation and breach of a duty of good faith.

The court held that the two actions should not be formally consolidated but ordered that they be listed for trial consecutively.

The proposed defamation claim and addition of a new plaintiff were refused because the pleadings lacked the particularity required for defamation and would not survive a motion to strike.

The proposed claim for breach of a duty of good faith was also rejected because such a duty cannot stand as an independent cause of action separate from breach of contract.

Certain amendments pleading material facts were allowed, while others were dismissed for improperly pleading evidence rather than material facts.