Sumit Tangri

The appellant appealed an order dismissing her application to remove a construction lien registered by the respondent for sewage backup remediation work.

Prior to the hearing, the Court of Appeal raised the issue of whether it had jurisdiction over the appeal or if it should have been brought to the Divisional Court under s. 71(1) of the Construction Act.

The parties agreed that the Divisional Court had jurisdiction.

The Court of Appeal confirmed that decisions made in reliance on the Construction Act, including orders discharging or refusing to discharge a lien, must be appealed to the Divisional Court.

The appeal was transferred accordingly.

This decision addresses the issue of costs following an application that determined the rights of a landlord and tenant under a lease agreement.

The applicant, 2327451 Ontario Inc., was partially successful on jurisdictional issues and successful on the interpretation of a restrictive covenant, but unsuccessful on other claims.

The court, applying the principles of mixed success under the Courts of Justice Act and Rules of Civil Procedure, awarded the applicant partial indemnity costs of $17,934.53, finding that litigation was a necessary step despite no formal settlement offers.

The plaintiff, Ontario, brought a motion for leave to amend its statement of claim to increase damages, provide further particulars of alleged kickback schemes, and add additional defendants in a civil fraud action.

The defendants and proposed added defendants opposed the motion, arguing the proposed amendments lacked particularity, used vague 'and/or' formulations, and failed to meet the minimum level of material fact disclosure.

The court agreed that several proposed paragraphs were deficient as they did not clearly identify which allegations were made against which specific defendants.

The motion was dismissed, but the plaintiff was granted leave to renew its motion with a properly drafted amended pleading.

The plaintiff, an undischarged bankrupt, commenced a professional negligence action against his former lawyer without disclosing the cause of action to his trustee in bankruptcy.

The defendants moved to dismiss the action on the basis that the plaintiff lacked legal capacity to sue, as the cause of action vested in the trustee under s. 71 of the Bankruptcy and Insolvency Act.

The court dismissed the action, finding that the plaintiff lacked capacity and that the claim could not be validated nunc pro tunc because the limitation period had expired.