Theodore B. Rotenberg

The appellant contractor appealed a trial judgment awarding the respondent subcontractor $852,416.50 for dewatering services and extra work on a municipal roadworks project.

The appellant argued the trial judge erred by admitting hearsay documents as business records and by inferring that the appellant had authorized the extra work by submitting the claims to the project owner.

The Divisional Court dismissed the appeal, finding the trial judge properly applied the business records exception under the Evidence Act and made factual findings supported by the voluminous record.

The applicant, 961838 Ontario Ltd. o/a MacGyver Autobody & Collision, sought a declaration of its right to a five-year renewal of its commercial lease with the respondents.

The respondents argued the applicant was in default and not entitled to renewal.

The court found that the applicant was not in default regarding signage or rent increase, and, in any event, would be entitled to relief from forfeiture.

The applicant was granted the right to a five-year renewal under the lease.

The defendant, Corey Sean Libfeld, brought a motion seeking a stay of the action or, alternatively, to prohibit the plaintiff, Pittsburgh Steel Group (PSG), from adducing certain evidence on the basis that PSG’s principal, Zoran Radonjic, violated the deemed undertaking rule by filing documents obtained in discovery with a complaint to the Professional Engineers Ontario (PEO).

The court found a violation of the rule but declined to stay the action, instead prohibiting PSG from adducing specific evidence and ordering costs as a deterrent.

The appellant owner appealed a motion judge's order directing the release of holdback funds to subcontractors under the Construction Act.

The appellant argued the motion judge erred in calculating the minimum holdback and in ordering payments without a formal summary judgment motion.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the law regarding basic holdback obligations and set-off, and properly utilized the summary procedure under s. 67 of the Act to expedite payment to subcontractors.

This decision addresses motions in three consolidated construction lien actions.

Sutton Forming Inc. sought a declaration on Homes by DeSantis (Lake) Inc.'s minimum holdback obligation under the Construction Lien Act and an order for payment from it.

The court clarified that the holdback is calculated based on the contract price for services actually supplied, not amounts paid, and rejected the owner's objections regarding certificate accuracy and set-off for deficiencies.

The court granted leave for the motion, declared the minimum holdback, and ordered specific payments to Sutton and its sub-subcontractors from the holdback.

This is an appeal and cross-appeal arising from a trial judgment concerning oppression and conspiracy claims related to a condominium corporation.

The appellants (original defendants) challenged the trial judge's findings that claims against one defendant were not statute-barred, the award of punitive damages, and substantial indemnity costs.

The respondents (original plaintiffs) cross-appealed the prejudgment interest rate.

The Court of Appeal dismissed both the appeal and the cross-appeal, upholding the trial judge's decisions on all contested issues, including the application of limitation periods, the appropriateness of punitive damages for egregious conduct, and the discretion in awarding substantial indemnity costs and prejudgment interest.

The plaintiff appealed a Master's order requiring it to post security for costs.

The plaintiff argued that because its statement of claim included a request for an oppression remedy under the Business Corporations Act, it should be immune from a security for costs order.

The Superior Court of Justice dismissed the appeal, finding that the Master correctly determined the true essence of the action was a claim for unpaid invoices, not oppression, and therefore the security for costs order was appropriate.

Three brothers engaged in a protracted dispute over the proceeds and operations of their family farming and construction businesses.

The plaintiffs claimed the defendant owed significant sums for personal expenses improperly charged to the company and imbalances in shareholder loan accounts.

The court found the company's records unreliable and ordered a formal accounting for the loan accounts and gas expenses.

Most other claims and counterclaims were dismissed as unproven or statute-barred under the Limitations Act, though one plaintiff was ordered to repay misappropriated fire insurance and sawmill proceeds.

The plaintiff brought a motion for an interlocutory injunction to preserve $2 million seized by the RCMP in related criminal proceedings, which had previously been ordered paid into court in the civil proceedings.

The defendants brought a motion to strike the plaintiff's counterclaim under Rule 21.

The RCMP brought a motion to quash a summons directed at an RCMP officer to provide evidence for a pending contempt motion.

The court granted the interlocutory injunction, dismissed the motion to strike the counterclaim, and dismissed the RCMP's motion to quash the summons, providing directions for obtaining the necessary documents.

The Court of Appeal remitted the issue of whether a condominium corporation (MTCC 1056) was entitled to be indemnified by its property manager (Brookfield) for costs arising from a negligent estoppel certificate.

The property manager had been found negligent in preparing the certificate, making the condominium corporation vicariously liable to the plaintiff.

The court held that an implied right of indemnity exists at common law for a principal found vicariously liable for its agent's negligence.

Brookfield was ordered to indemnify MTCC 1056 for the costs paid to the plaintiff and the costs of the trial and appeal.

The defendants brought a motion under Rule 21.01(1)(a) and Rule 20 to dismiss the plaintiff's action.

The action claimed against the defendants under the trust provisions of the Construction Lien Act for interest and costs, and was also challenged on the basis of a limitation period.

The court dismissed the motion, finding that the legal question of whether interest and costs are covered by the CLA trust was unsettled and required a full factual record at trial.

Similarly, on the limitations issue, the court determined there was a genuine issue requiring trial, particularly concerning the "appropriate means" element of discoverability under the Limitations Act, 2002.

The appellant, a plumbing subcontractor, registered general liens against two home development projects after the general contractor went bankrupt.

The general contractor's contracts with the owners stipulated that liens would arise and expire on a lot-by-lot basis.

The motion judge and Divisional Court discharged the general liens, holding that section 20(2) of the Construction Lien Act precludes a subcontractor from claiming a general lien when the main contract contains a lot-by-lot restriction.

The Court of Appeal affirmed this interpretation, finding that a subcontractor's right to a general lien flows from the main contract.

The Court also declined to apply the curative provisions of section 6 or treat the liens as excessive under section 35.

Following a trial in which the defendants successfully defended multiple claims including breach of contract, spoliation, unjust enrichment, and property-related torts, the court determined costs.

The defendants sought substantial indemnity costs and recovery of professional fees for several witnesses characterized as participating experts.

The court confirmed that participating experts may justify reasonable compensation where their expertise arises from involvement in the underlying events.

Applying Rules 49 and 57.01 of the Rules of Civil Procedure and principles of proportionality, the court awarded partial indemnity costs to the date of the defendants’ offer to settle and substantial indemnity costs thereafter.

Supplementary reasons addressing implementation and costs following an appeal decision regarding a condominium dispute.

The court ordered a trial of an issue to determine the difference in value between a two-storey and three-storey townhouse unit.

The court denied prejudgment interest on the valuation amount, finding the loss crystallized on the date of the appeal decision.

The court also allocated trial and appeal costs among the parties, applying modified Sanderson orders to account for successful and unsuccessful claims against various defendants.

The appellant purchased a condominium townhouse advertised as three storeys, but later discovered the third floor was illegally built into the common element attic space.

She sued the condominium corporation, the property manager, her real estate lawyers, and the vendor.

The Court of Appeal held that the condominium corporation was liable for negligent misstatement for issuing a clean estoppel certificate despite the illegal third floor.

The court upheld the finding of solicitor negligence against the appellant's real estate lawyers for failing to review the vertical survey plans.

Damages were reassessed to compensate the appellant for the lost opportunity of owning a three-storey unit, and punitive damages against the vendor were upheld.

Following the dismissal of two appeals heard together, the successful respondents sought costs.

One respondent sought substantial indemnity costs based on a Rule 49 offer to settle, while the other sought partial indemnity costs.

The appellant argued that no costs should be awarded because the appeal raised a novel issue of law regarding the interpretation of the Construction Lien Act.

The Divisional Court rejected the appellant's argument, finding the issue was not novel and the appellant's interpretation would have rendered section 20(2) of the Act meaningless.

The court awarded costs of $7,500 to each of the successful respondents.

The appellant, a plumbing subcontractor, registered a general lien against all lots in two subdivisions after the general contractor made an assignment in bankruptcy.

The owners had written contracts with the general contractor specifying that liens would arise and expire on a lot-by-lot basis.

The Divisional Court upheld the motions judge's decision to discharge the general liens, finding that section 20(2) of the Construction Lien Act extinguishes general lien rights for both contractors and subcontractors when the primary contract contains a lot-by-lot provision.

The court also dismissed the appellant's attempt to continue the action for unjust enrichment and quantum meruit, and refused leave to appeal costs.

The plaintiffs purchased lots in an industrial subdivision and sued the municipality for negligent misrepresentation, alleging they relied on a letter from the building director indicating building permits would be available.

The plaintiffs claimed the letter failed to disclose that the Ministry of the Environment required a section 45 approval before permits could issue.

The Superior Court of Justice dismissed the action, finding that the letter was not misleading and that the plaintiffs failed to read the subdivision agreement, which explicitly stated the requirement for environmental approval.

The court also held that the action was statute-barred as the plaintiffs ought to have discovered the material facts more than six years before commencing the lawsuit.

Developers of two condominium projects alleged that a concrete forming contractor breached fixed‑price agreements by refusing to commence work when directed.

The plaintiffs argued that start dates were not essential terms of the August 18, 2005 handwritten agreement and that the contractor was required to begin work whenever the sites were ready.

The defendant maintained that predetermined start dates were essential to its pricing and that no binding contract existed once the projects were significantly delayed.

The court found that the parties had contemplated mid‑ to late‑October 2005 start dates and that these dates were an essential contractual term tied to price and scheduling.

There was no agreement allowing the plaintiffs to dictate start dates based solely on site readiness and no waiver of the start‑date requirement during subsequent contract negotiations.

The action was dismissed.

The appellant purchased 51.5 acres of land from the respondents, with an agreement to use 'best efforts' to obtain a severance of a one-acre parcel containing the respondents' home.

The trial judge found the appellant breached this obligation and ordered specific performance.

On appeal, the appellant argued the trial judge made palpable and overriding errors in assessing the evidence and erred in awarding specific performance.

The Court of Appeal dismissed the appeal, finding the trial judge's factual conclusions were supported by the record and the award of specific performance was reasonable given the unique nature of the property.