Thomas M. Wood

The respondent sought an adjournment of an application hearing to obtain counsel.

The applicant agreed to the adjournment but requested conditions to prevent the respondent from initiating new actions or taking further steps in existing litigation during the adjournment period.

The court granted the adjournment with the requested conditions, citing the allegations in the application and the respondent's litigation history as reasons for the restrictions and for making the next hearing date peremptory.

Homeowners sued the Town of Huntsville after basement flooding due to Building Code non-compliance and deficient building inspections.

A first action was settled with a payment from the Town's insurer (Lloyd's) and an agreement for repairs, with releases held in escrow.

When the repairs failed, homeowners brought a second action.

The Town applied for a declaration that its insurers (Lloyd's and AIG) had a duty to defend the second action.

The court found that Lloyd's had a duty to defend because the first action was not fully settled, the second action was a continuation of the first, and the Town's exposure to contractual claims arose from counsel retained by Lloyd's.

AIG had no duty to defend as the damage was manifest before its policy period and the second action was primarily contractual.

Homeowners brought motions to amend their statement of defence and counterclaim to particularize defective installation of a radiant in‑floor heating system and to obtain summary judgment based on findings from the Licence Appeal Tribunal under the Ontario New Home Warranties Act.

The court held the amendment was not a new cause of action but merely a particularization of negligence already pleaded concerning the concrete foundation and construction defects.

Applying issue estoppel principles, the court found the Tribunal’s determination that the heating system constituted a major structural defect was a final judicial decision between the same parties and resolved the same issue.

Summary judgment was therefore granted on liability for breach of contract relating to the heating system, but damages were left for determination at trial.