Terrence Anthony Pochmurski

The defendants moved to declare the plaintiff's construction lien expired, discharge the lien, vacate related registrations, and dismiss the action for delay.

The plaintiff conceded lien expiry but opposed dismissal of its joined breach of contract and unjust enrichment claims.

The court found that Rule 24.01 of the Rules of Civil Procedure does not apply in lien actions due to inconsistency with the Construction Act, but exercised its broad discretion under s. 47 of the Act to dismiss for delay.

The action had not progressed beyond the pleadings stage in over four years, the statement of claim had not been served, and no adequate explanation for the delay was provided.

The court dismissed the action in its entirety and awarded substantial indemnity costs to the defendants.

The moving party sought leave to appeal the decision of Sutherland J. dated June 11, 2024.

The Divisional Court denied the motion for leave to appeal.

Costs were fixed at $1,000 all-inclusive to the responding parties who appeared, with the amount reduced due to the failure to file a cost outline.

This endorsement addresses the costs of a motion where the plaintiff, Environmental Building Solutions Corporation, successfully obtained leave to amend its statement of claim in a construction lien action.

The defendants had opposed the motion, arguing the claim was statute-barred.

The court found the plaintiff's motion was brought within the limitation period and granted leave to amend.

Consequently, the plaintiff sought costs on a partial indemnity scale.

The court awarded costs to the plaintiff, finding the hourly rate claimed by counsel reasonable after adjusting for inflation and the time spent proportionate to the issues.

The defendants, 2420124 Ontario Limited and 2420125 Ontario Limited, were ordered to pay $14,415.96 in costs, including fees, HST, and disbursements.

Following a successful motion to vacate a construction lien and related Certificate of Action, the moving parties sought costs on a substantial indemnity scale.

The court found that the moving parties' first offer to settle met the requirements of Rule 49, entitling them to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

After accounting for costs already paid by the responding party and applying a proportionality reduction, the court fixed the costs award at $18,000.

Following a decision granting in part the defendants' motion to vacate a construction lien, the successful moving parties requested to address costs in writing.

The court granted the request, noting the general expectation that costs be dealt with at each stage of a proceeding and the lack of prejudice to the plaintiff.

A timetable for written costs submissions was established.

The defendants brought a motion to vacate a construction lien and dismiss the plaintiff's action.

The plaintiff admitted the registered lien amount of $211,875 was incorrect and should have been approximately $167,000, relating to a subsequent oral contract rather than the initial formal contract pleaded.

The court held that the material misstatement in the lien amount could not be saved by section 6 of the Construction Lien Act.

The court vacated the lien and certificate of action but refused to strike the pleadings or dismiss the action, instead ordering the plaintiff to bring a motion to amend its statement of claim to assert the second contract for quantum meruit and breach of contract claims.

The applicants sought to clarify a registered Right of Way over the respondents' property, which the respondents contended was limited to winter use.

The court found that the original grant of Right of Way was unambiguous and unrestricted.

A subsequent "Notice of Right of Way" signed only by the grantor and lacking mutual consideration, did not legally limit the Right of Way's use to winter months.

The application was granted, confirming the applicants' right to year-round, uninterrupted ingress and egress, and an injunction was issued against obstruction.

The Plaintiff, Elizabeth Samuel, brought a motion for a Certificate of Pending Litigation (CPL) against a property she had previously transferred to the Defendant, Omotayo Ore Muti, which was subsequently mortgaged to Wolfson Law Professional Corporation.

The Plaintiff sought to enforce an agreement to repurchase the property.

The court granted the CPL, finding a triable issue regarding the Plaintiff's interest in the land and that the equities favored registration, despite concerns about the Plaintiff's diligence and compliance with prior orders.

The court also expressed concerns about the non-arms-length nature of the mortgage transaction between the Defendant and his former lawyers, Wolfson Law.

The moving party brought a motion to quash the proposed appellant's appeal of an order setting aside a stay of execution of a Writ of Possession.

A single judge of the Court of Appeal had previously granted a stay pending appeal on the condition that the proposed appellant pay outstanding rent within 14 days.

The proposed appellant failed to comply with this condition.

As a result, the stay was no longer in effect, the proposed appellant was out of time to appeal, and the appeal became moot.

The Court of Appeal quashed the appeal and awarded costs to the moving party.

The moving defendants sought an injunction restraining the plaintiff mortgagee from completing a power of sale closing scheduled for the following day.

The dispute arose in a mortgage enforcement action where the defendants had filed a statement of defence and a request to redeem after a default judgment had been set aside.

The court held that the defendants retained an equitable right to redeem under the Rules of Civil Procedure and that the plaintiff could not render that right nugatory by proceeding with a power of sale after commencing a foreclosure or sale action.

Applying the test for an interlocutory injunction, the court found a prima facie case, irreparable harm through the loss of the defendants’ equitable interest in the mortgaged property, and a balance of convenience favouring the defendants.

The court therefore restrained the proposed sale until the redemption period expired and the mortgage accounts were taken and judgment rendered.

The appellant appealed a motion judge's decision refusing him leave to amend his statement of claim to add a claim for constructive dismissal against his former employer.

The motion judge had found the claim was statute-barred under the Limitations Act, 2002, concluding the appellant knew or ought to have known of the claim on the date his lawyer sent a letter indicating his readiness to return to work.

The Court of Appeal allowed the appeal, finding the motion judge's conclusion unreasonable as the employer required a reasonable time to respond to the letter.

The limitation period issue was left for determination at trial.

Following the dismissal of the appellant's appeal from a Small Claims Court decision, the successful respondents sought costs.

The respondents, who were self-represented at trial but retained counsel for the appeal, claimed substantial indemnity costs of $7,611.62 or partial indemnity costs of $4,593.75.

The appellant conceded costs were payable but argued they should be fixed at $4,500.

Applying the principles of reasonableness and proportionality under Rule 57.01 and section 131 of the Courts of Justice Act, the court fixed the respondents' costs at $5,000 inclusive of fees, disbursements, and HST.

The appellant appealed a Small Claims Court decision that dismissed its claim for unpaid invoices.

The trial judge found the appellant was entitled to the claimed amount but allowed an equivalent set-off due to the appellant's negligent misrepresentation regarding the seasonal sag of hydro wires, which caused the respondents to incur significant extra costs when moving a house.

The Divisional Court dismissed the appeal, holding that the informal pleading standards in Small Claims Court permitted the trial judge to apply set-off based on the facts presented, and that the finding of negligent misrepresentation was supported by the evidence.