Stéphane Bond

The defendants, McDonald Brothers Construction Inc. et al., brought a motion to dismiss the plaintiff's claim for delay under Rule 24.01 of the Rules of Civil Procedure.

The action, commenced in 2016, had seen no progress since discoveries in 2018, and the plaintiff failed to comply with a 2019 order to retain new counsel.

The court found the delay to be inordinate and inexcusable, rejecting the plaintiff's explanations related to personal health, financial difficulties, and the pandemic.

Despite no finding of intentional or contumelious conduct, the plaintiff failed to rebut the presumption of prejudice arising from the delay.

The motion was granted, and the action was dismissed with costs awarded to the defendants.

This was a motion for summary judgment to enforce a settlement agreement.

The respondents argued the agreement should be set aside due to duress, misrepresentation, and mistake of fact, contending a full hearing was required.

The court found the matter suitable for summary judgment under Rule 20 and Hryniak v. Mauldin.

The court dismissed the respondents' arguments, finding insufficient evidence for duress, no fundamental mistake regarding the agreement's terms (including CPP, EI, and taxes), and no basis for negligent misrepresentation.

Summary judgment was granted to the moving party, enforcing the settlement agreement, and substantial indemnity costs were awarded against the respondents.

The plaintiff brought a motion for leave to amend the statement of claim, seeking to add a new defendant and remove an existing one.

The court identified numerous procedural deficiencies in the motion record, including an improper basis for bringing the motion in writing (expectation of unopposed vs. consent), lack of affidavit of service for the proposed new party, use of antiquated terminology ("style of cause"), and issues with the consent form and document filing.

The motion was not granted at this time and was adjourned with specific directions for the plaintiff to correct the record and ensure proper service on all parties, including the proposed new defendant.

The applicant sought leave to appeal an order of the motion judge dated January 11, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $2,500 on a partial indemnity scale to the respondents.

The applicant sought leave to appeal an order dated January 11, 2021.

The Divisional Court dismissed the motion for leave to appeal in writing and awarded costs of $2,500 on a partial indemnity scale to the respondents.

The plaintiff subcontractor sought payment from the owner's holdback funds after the general contractor failed to pay for work on a restaurant construction project.

The court determined that the contract between the owner and general contractor was not a fixed-price contract but rather a costs-plus arrangement, meaning the owner's 10% holdback obligation was calculated based on the total actual costs incurred.

The court also found the owner was not liable for a further notice holdback because it did not receive written notice of the liens in the prescribed form.

Finally, the court interpreted trust agreements between the owner and other subcontractors who had discharged their liens, awarding them payments from the trust funds based on the specific terms of their respective agreements.

This decision addresses the costs of a previously dismissed motion brought by 256613 Ontario Inc. (the Owner) to strike and discharge construction liens registered by GTA General Contractors Ltd. and Karar Al-Najari (the Contractors).

The Contractors, having successfully defended the Owner's motion, sought costs on a substantial indemnity scale.

The court, considering the complexity and importance of the liens but noting the Contractors' unsuccessful argument regarding the interlocutory nature of the Owner's motion, awarded costs on a partial indemnity scale in the amount of $6,700, including HST and disbursements.

The appellant general contractor appealed a motion judge's refusal to discharge a second construction lien registered by the respondent subcontractor.

The respondent had registered a first lien, discharged it due to an error in the dates of service, and registered a second lien for the same amount.

The Divisional Court allowed the appeal, finding that under s. 48 of the Construction Lien Act, the discharge of a lien is irrevocable and the lien cannot be revived.

The motion judge erred in finding the first lien a nullity without giving the parties an opportunity to make submissions, and in failing to consider the curative provision in s. 6 of the Act.

The second lien was ordered discharged.

The defendants, JP Gravel Construction Inc. and Jean-Pierre Gravel, brought a motion seeking leave to discharge a construction lien registered by the plaintiff, 9585800 Canada Inc. o/a Earth Movers, and to dismiss the lien action.

The plaintiff had initially registered a "First Lien" with a typographical error in the timeframe of services, discharged it, and immediately registered a "Second Lien" with the corrected timeframe.

The defendants argued the second lien was invalid under s. 48 of the Construction Lien Act due to the discharge of the first, and was exaggerated.

The court granted leave for the motion but dismissed the defendants' request to discharge the second lien, finding the first lien to be a nullity due to the incorrect timeframe, thus making s. 48 inapplicable to the valid second lien.

Costs were awarded to the plaintiff.

The Third Party, a municipality, brought a motion for summary judgment to dismiss a Third Party Claim brought by the Defendant general contractor.

The claim arose from a municipal infrastructure project where a provisional item was deleted from the contract.

The parties had previously entered into a Global Settlement Agreement to resolve all outstanding claims.

The court found that the summary judgment process was appropriate as there were no credibility issues requiring a trial.

The court interpreted the Global Settlement Agreement and concluded that the specific claim was subsumed within the settlement, barring the Defendant from asserting further claims.

The motion for summary judgment was granted.

The plaintiff contractor brought a motion for summary judgment for unpaid invoices and breach of trust under the Construction Lien Act.

The corporate defendant conceded liability for the invoices.

The issue was whether the individual defendant, the sole directing mind of the corporation, was personally liable for breach of trust under s. 13.

The plaintiff argued that the corporation's rental income used to self-finance the improvements constituted a trust fund under s. 7(1).

The court dismissed the motion against the individual defendant, holding that s. 7(1) requires a distinct fund specifically earmarked for financing the construction, and general revenues do not qualify.

This endorsement addresses the costs arising from the dismissal of the Plaintiff's motion for summary judgment.

The Defendants, as the successful parties on the summary judgment motion, sought costs in the range of $17,000-$19,000.

The Plaintiff argued for deferral of costs to the trial judge or a significantly lower award, citing that some defence materials would be used at trial and the limited value/complexity of the motion.

The court found the Defendants' costs claim reasonable, noting the Plaintiff's own higher costs outline for the original motion and the "pay-as-you-go" principle for interlocutory motions.

The court awarded the Defendants $12,000 in all-inclusive costs, plus an additional $500 for preparing the costs submissions.

The plaintiff, G.M. French Construction Co., sought leave to bring a summary judgment motion and summary judgment for unpaid invoices totaling $74,454.79, less a Tarion defect amount, arising from a cost-plus contract to build a new home.

The plaintiff also sought to dismiss or stay the defendants' counterclaim.

The court, applying the test from Hryniak v. Mauldin and s. 67 of the Construction Lien Act, found that there were genuine issues requiring a trial, including disputes over change orders, the value of unapproved changes, work performance, project delays, and the consultant's payment approvals.

Consequently, leave for the summary judgment motion and the motion for summary judgment were denied.

The respondent contractor hired the appellant for epoxy flooring based on a sketch with inaccurate elevations.

When the appellant discovered the error and sought a price increase, the respondent refused, leading to a breach of contract claim and a counterclaim for lost profits.

The trial judge found for the appellant, but the Divisional Court overturned the decision on its own initiative, applying the doctrine of common mistake.

The Court of Appeal allowed the appeal, holding that the Divisional Court erred by deciding the case on unpleaded grounds and misapplying the doctrine of common mistake, as the mistake was the respondent's fault.

The applicants sought a stay of orders issued by the respondent municipality under the Building Code Act regarding their heritage buildings, which were in an unsafe condition.

The applicants wanted to demolish the buildings without complying with the heritage permit conditions.

The court applied the RJR-Macdonald test and dismissed the motion for a stay, finding no serious issue to be tried, no irreparable harm, and that the balance of convenience favoured the public interest in preserving heritage buildings and ensuring safety.

Following a multi‑day civil trial involving contractual disputes and a counterclaim, the successful defendants sought costs relying on multiple settlement offers made under Rule 49 of the Rules of Civil Procedure.

The plaintiff argued the result was mixed and that each party should bear its own costs, emphasizing that the defendants’ counterclaim was ultimately found to be prescribed.

The court reviewed the governing costs factors under Rule 57 and the jurisprudence concerning settlement offers and proportionality.

The court held the defendants were the successful parties and that a reasonable settlement offer should have been accepted.

Partial indemnity costs were awarded against the plaintiff.

A financial advisor sued his former business associate and the associate’s corporation for breach of contract following termination of their business arrangement.

The defendants alleged that the advisor breached an exclusivity clause by selling investment products of a competing financial institution outside the agreed distribution structure and brought a counterclaim for damages.

The court found that the advisor had violated the contractual clause prohibiting the transfer of business outside the firm and had also breached fiduciary obligations.

The defendants were therefore entitled to terminate the contract.

However, the counterclaim was dismissed as statute‑barred under the Limitations Act, 2002 because it was commenced outside the applicable limitation period.

The plaintiff masonry company brought an action for unpaid services under a verbal, cash-based contract for the installation of stone veneer and chimneys on the defendants' new home.

The defendants counterclaimed for the cost of remedial work, alleging the masonry was defective and not compliant with the building code.

The court found that both parties entered into an imprecise, 'under the table' arrangement and shared responsibility for the project's shortcomings.

Concluding that the plaintiff received less than expected but was entitled to less due to the final result, and that the defendants as builder/contractors bore responsibility for the conditions, the court dismissed both the main action and the counterclaim.

The appellant general contractor sued the respondent subcontractor for breach of contract after the respondent refused to commence work without an agreement for extra costs due to inaccurate tender documents.

The respondent counterclaimed for loss of profit and surveying costs.

The trial judge dismissed the appellant's claim and awarded damages to the respondent.

On appeal, the Divisional Court found that the substantial errors in the tender documents constituted a fundamental mistake that rendered the contract void.

Consequently, neither party was entitled to damages.

The appeal was allowed in part, setting aside the trial judgment in favour of the respondent.