Stephen T. Bale

On a summary judgment motion in a construction tender dispute arising from an airport runway project, the court held that the parties entered into a binding contract for the full scope of work under the request for tender.

However, the plaintiff contractor's claim for damages for unperformed portions of the project was barred by a written compensation waiver covering delays, public concerns, and funding-related changes beyond the municipality's control.

The court also held that the damages claim was not proved under the incorporated contractual provisions and that the action was not barred by the basic limitation period in s. 4 of the Limitations Act, 2002.

Summary judgment was granted and the action was dismissed.

During a civil jury trial, the plaintiffs sought leave to argue that the jury could draw an adverse inference from a defendant's failure to testify.

The court held that the defendant's non-attendance had been adequately explained by his incarceration in another province and that inviting such an inference would be misleading.

The plaintiffs were permitted to comment on the absence of supporting evidence from the defendant on specific factual issues, but not to suggest that his evidence would have been detrimental to the defence.

The adverse inference issue was not left with the jury.

On a trial motion, the defendants objected to evidence that one defendant apologized after an explosion causing burn injuries.

The court held that the Apology Act, 2009 did not apply retroactively to an apology allegedly made in 2006, before the statute came into force.

Applying the presumption against retroactive legislation, the court found the Act was directed to the making of apologies, not merely the future admissibility ruling at trial, and that retroactive application would alter the legal effect of a past event and potentially remove substantive insurance-related defences.

The apology evidence was therefore admissible.

In a civil jury trial arising from explosion-related burn injuries, the defendants moved to disqualify the plaintiffs' proposed expert on the basis of bias, advocacy, speculation, and opinions outside his expertise.

Applying the governing admissibility framework for expert independence, the court held that the reports demonstrated advocacy and objectionable inflammatory language, but the substance of the expert's opinions within his actual expertise was not so tainted as to be of minimal or no assistance.

The court therefore declined to exclude the evidence.

The expert was permitted to testify only within his area of expertise and subject to detailed restrictions on language, factual assumptions, and speculation.

The appellant appealed a Small Claims Court judgment finding her personally liable for unpaid paralegal invoices.

The Divisional Court upheld the finding of personal liability because the appellant failed to disclose she was contracting on behalf of a corporation.

However, the court allowed the appeal on the basis that the two-year limitation period had expired before the appellant was added as a defendant.

The court held that the limitation period began to run 30 days after the invoice date, not after subsequent demands for payment.

The action against the appellant was dismissed.

The accused applied under the Criminal Code for a review of bail conditions imposed after being charged with perjury arising from testimony given as a Crown witness in another criminal trial.

The impugned terms prohibited communication with motorcycle outlaw members and attendance at a specified address used as a motorcycle club clubhouse.

Applying a functional approach to bail review, the court held that the accused’s right to reasonable bail continues and the correctness standard permits reconsideration even absent changed circumstances.

The court found the impugned conditions overly broad and unsupported by evidence linking them to the integrity of the accused’s trial.

The conditions were therefore removed as inconsistent with the accused’s constitutional right to reasonable bail.

The plaintiffs, Ontario residents injured in a motor vehicle accident in New York, sued the New York driver and their Ontario insurer in Ontario.

The defendant driver moved to stay the action for lack of jurisdiction, arguing there were no presumptive connecting factors under the real and substantial connection test articulated in Van Breda.

The plaintiffs argued that their Ontario automobile insurance contract created a connecting factor and alternatively relied on the doctrine of forum of necessity due to alleged inadmissibility into the United States arising from a criminal record.

The court held that the insurance contract was not connected to the tort claim against the foreign defendant and therefore could not establish jurisdiction.

The court further held the plaintiffs failed to prove that litigation in New York was impossible or unreasonable, rejecting application of the forum of necessity doctrine.

The action was stayed against the foreign defendant.

The applicant sought to relocate the parties’ children from Bracebridge to Stittsville following the loss of her employment and the acceptance of new employment in Ottawa.

The court applied the relocation framework from Gordon v. Goertz and found that the change in employment and residence constituted a material change in circumstances.

In assessing the best interests of the children, the court considered the existing parenting arrangement, the children’s greater attachment to the primary caregiver, the views of the children, and the disruption associated with either permitting or denying the move.

The respondent raised allegations of parental alienation and improper motive, but the court rejected those claims and accepted that the relocation was driven primarily by employment circumstances.

The court concluded that the children’s best interests favoured relocation with the applicant while preserving meaningful parenting time with the respondent.

The plaintiff, injured while delivering pizza when interacting with the defendants’ dog, sought leave under Rule 48.04(1) of the Rules of Civil Procedure to bring a motion for summary judgment on liability and contributory negligence after the action had been set down for trial.

The court held that summary judgment is only available where there is no genuine issue requiring a trial with respect to a claim or defence and that the plaintiff’s request effectively sought to bifurcate liability and damages without the defendants’ consent under Rule 6.1.01.

The court found the proposed motion would not provide a proportionate, more expeditious, or less expensive means to resolve the dispute, particularly given that evidence regarding the incident would need to be revisited at trial on damages.

Leave was therefore refused and the motion dismissed.

Costs were awarded to the defendants on a partial indemnity basis.

A homeowner sued a contractor for a refund of the contract price after a lakeside dock constructed under a five‑year workmanship and materials warranty became uneven after two winters.

The contractor argued the damage was caused by extraordinary ice and weather conditions rather than defective construction and counterclaimed for defamation based on threatening emails and alleged reputational harm.

The court found the precise physical cause of the uplift uncertain but concluded the dock’s premature failure, absent a satisfactory exculpatory explanation, entitled the plaintiff to damages.

However, the plaintiff failed to mitigate losses by investigating repair options, and the evidence established the dock was repairable at modest cost.

The court awarded damages limited to the estimated repair cost and dismissed the defendant’s defamation counterclaim for lack of proof of publication or actual loss.