Stéphane P. Bond

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.

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.

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.