Todd Robinson

The plaintiff moved to amend its statement of claim to add the supervising lawyer of the defendant paralegal as a party defendant.

The proposed new defendant and the paralegal defendants opposed the motion, arguing the claim was untenable, statute-barred, and prejudicial, and requested a mid-hearing adjournment.

The court denied the adjournment as procedurally unfair.

The court granted leave to amend, finding the proposed pleading disclosed a tenable cause of action for negligent legal advice and that the limitations defence could not be fairly decided on the existing evidentiary record.

The amendment was granted without prejudice to the new defendant pursuing a limitations defence at trial.

The defendant developer moved under section 44(5) of the Construction Lien Act to further reduce the security posted in court for the plaintiff contractor's lien from $525,000 to $149,265.21.

The defendant argued the lien should be calculated based on unpaid amounts and delay claims, less payments made, and pro-rated across the 9 unsold condominium units out of 179 total units.

The court rejected the plaintiff's calculation method for failing to account for substantial payments made by the defendant.

However, the court found that whether a lien claimant is limited to a pro-rata recovery against only the liened units in a condominium is a novel triable issue.

Because the unpaid balance without pro-rating exceeded the current security, the motion to reduce security was dismissed.

The defendant condominium corporation brought a motion under section 47 of the Construction Act to discharge the plaintiff's construction lien, arguing the principal amount of $811,919.08 had been paid in full.

The plaintiff opposed, asserting it was entitled to allocate the payments first to accrued interest, leaving a principal balance of $93,004.03.

The court dismissed the motion, finding genuine issues for trial regarding whether the parties had reached a binding agreement on payment allocation and whether the defendant had provided a clear and irrevocable direction to apply payments to the principal debt.

Following a trial of two construction lien actions, the parties sought costs and pre-judgment interest.

The court rejected requests to pay costs from security posted for an expired lien.

The successful plaintiff, Senso, was awarded substantial indemnity costs of $120,000 against both defendants jointly and severally due to their pursuit of unmeritorious defences.

The partially successful plaintiff, TMAP, was awarded partial indemnity costs against one defendant.

The successful defendant, Finch, was awarded partial indemnity costs against TMAP and the co-defendant, but was denied costs for the time its self-represented principal spent on the trial due to a lack of evidence regarding lost opportunity costs.

Pre-judgment interest was awarded based on fluctuating rates as calculated by the plaintiffs.

In a personal injury action arising from a motor vehicle accident, the defendant moved to compel a proper affidavit of documents and further production from the plaintiff.

Applying the principle that relevance is determined by the pleadings, the court held that the requested medical, employment, tax, benefits, and property damage records were relevant to the pleaded physical and psychological damages and that the plaintiff had breached his production obligations through piecemeal and inadequate disclosure.

The court ordered the plaintiff to serve an affidavit of documents, including Schedule C, within 20 days, with modified wording limiting production to documents within the plaintiff’s possession, control, or power.

Partial indemnity costs of $4,607.69 were awarded to the defendant.

The plaintiff, a subcontractor on the Finch West LRT project, sought leave to bring motions for partial summary judgment on its claims for unpaid invoices and holdback, and to dismiss or stay the defendants' set-off claims and counterclaims for failure to prove damages, and to determine the applicability of a contractual limitation of liability clause.

The defendants opposed leave, arguing that partial summary judgment would introduce procedural complexity and delay trial.

The court granted leave, finding that the proposed motions would expedite resolution of issues in dispute, particularly given that liability and damages are separate issues and that the court, as both motions judge and trial judge in the Construction Act reference, could manage any concerns about inconsistent findings.

The defendant insurer moved to set aside a noting in default entered after it failed to deliver a statement of defence.

The plaintiff, a self-represented lawyer, had buried the demand for a defence in a lengthy email and subsequently continued communications without disclosing the noting in default.

The court applied the framework from Trayanov v. Icetrading Inc., weighing delay, party conduct, claim complexity, prejudice, and the merits of the defence.

Finding the delay adequately explained, the balance of prejudice favoured the defendant, and the claim's $1.5 million value warranted adjudication on the merits, the court granted the motion.

Costs were fixed on a partial indemnity basis at $3,250, payable at the conclusion of litigation in any event of the cause.

The plaintiff lien claimant and the defendant first mortgagee brought cross-motions to determine priority between the mortgage and the construction lien.

The court held that the mortgage was taken solely to finance the acquisition of the land, not to secure the financing of an improvement, and therefore had full priority as a prior mortgage under s. 78(3) of the Construction Act.

The court also held that the mortgagee's unilateral deletion of the plaintiff's claim for lien from title under s. 75 of the Land Titles Act was invalid, as it circumvented the specific discharge procedures in the Construction Act.

The defendant brought a motion for security for costs of $350,000 ahead of a scheduled trial.

The court dismissed the motion, finding that the defendant had unduly delayed in bringing the motion without a cogent explanation, having waited until after discoveries and an unsuccessful summary judgment attempt.

Furthermore, the defendant failed to meet the threshold onus under Rule 56.01(1) to show good reason to believe the corporate plaintiffs lacked sufficient assets in Ontario, as evidence showed the plaintiffs held over $745,000 in exigible assets.

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.

A construction lien claimant brought a motion to enforce a settlement agreement with homeowners who had failed to make payment by the agreed deadline.

The homeowners, initially represented by counsel but later self-represented, argued the settlement was not binding due to lack of voluntary and informed consent, fundamental mistake, and procedural unfairness at the settlement conference.

The court found that a binding settlement had been reached through objective evidence of mutual intention and agreement on all essential terms.

The homeowners were represented by counsel throughout negotiations and signed minutes of settlement twice without raising concerns.

The court rejected arguments regarding lack of informed consent, ineffective representation, and procedural unfairness, finding no compelling circumstances warranting non-enforcement.

Judgment was granted in accordance with the settlement terms.

This costs endorsement addresses competing costs claims arising from a motion regarding holdback allocation and distribution in a construction lien reference.

Flocor Inc. sought costs thrown away against the Urban Parties (Urban Integrated Group Inc., Urban Mechanical Contracting Ltd., and Standard Fire Protection Inc.) claiming they misrepresented the contractual relationship between the defendants.

The Urban Parties sought costs against Flocor for unnecessary expense incurred in responding to Flocor's evidence and costs claim.

The court rejected Flocor's claim for costs thrown away, finding that Flocor had ample notice of the correct contractual relationships and that its intended legal position lacked sufficient merit.

The court awarded costs to the Urban Parties for the costs submissions phase only.

A lien action concerning a residential construction project at 39 Craven Road, Toronto.

Village Homes Inc. was initially contracted to manage renovation work but the project expanded substantially beyond its original scope.

The parties disputed whether Village was a construction manager or general contractor, whether there was a fixed price contract change for extra work, and whether the contract was breached or repudiated.

The court found that Village abandoned the contract and failed to prove any amounts owing.

Ms. Connelly's counterclaim for deficiencies and completion costs was dismissed due to insufficient evidence.

Both the claim and counterclaim were dismissed, and Village's lien was discharged.

The defendant 35 Mercer Limited brought a motion to reduce the construction lien of the plaintiff Urban Electrical Contractors (UEC) by $4,333,708.96.

Prior to the hearing, Mercer, UEC, and Urban Integrated Group Inc. (UIG) settled the motion on terms reducing UEC's lien security by $3,231,464.75.

Subsequently, Mercer and UEC reached a separate settlement to fully discharge UEC's lien and return all security.

However, UIG opposed the full return of security because UIG's own liens had been vacated with reduced security that accounted for UEC's lien security already posted.

The court held that security for one lien cannot be returned without considering other lien claimants affected by that return, and ordered reduction only to the extent of UIG's consent.

The court also declined to award costs, finding the parties had settled the motion without judicial intervention on the merits.

The plaintiff brought a motion seeking leave to continue an action against the Crown under section 17(2) of the Crown Liability and Proceedings Act, 2019.

The plaintiff alleged that the Crown intentionally fabricated a document falsely identifying him as a criminal and distributed it to police services throughout Ontario, resulting in significant personal, professional, and emotional harm.

The Crown argued the claim was subject to an automatic stay under section 17(1) of the CLPA as it was based on bad faith conduct.

The court found the automatic stay applied and dismissed the motion for leave, finding the plaintiff failed to meet the threshold of demonstrating a reasonable possibility of success at trial.

The court noted insufficient credible evidence supporting the existence of the alleged criminal document and numerous unsubstantiated allegations in the plaintiff's materials.

The plaintiff brought a motion to set aside a registrar's administrative dismissal of an action for delay.

The action arose from a disputed power of sale process undertaken by the defendants as mortgagees in October 2014.

The plaintiff commenced the action in March 2015 seeking $300,000 in damages and an accounting.

Over nearly ten years, the action proceeded only through pleadings and exchange of affidavits of documents, with examinations for discovery never occurring.

The court dismissed the motion, finding that the plaintiff failed to provide a satisfactory explanation for the extensive litigation delay, failed to demonstrate a genuine intention to prosecute the action, and that significant prejudice resulted from the delay, including the death of a key witness with firsthand knowledge of the disputed events.

This is a costs and interest decision in a construction lien action.

The plaintiff contractor (LMB) obtained judgment for an earned and unpaid amount of $172,740.47 but failed to prove a timely lien.

The defendant (200) had its counterclaim dismissed and the lien was declared expired.

LMB sought costs on a substantial indemnity basis, while 200 sought partial indemnity costs or no costs.

The court awarded reduced partial indemnity costs to LMB and addressed the calculation of prejudgment interest under the parties' contract.

The plaintiff's counsel brought a motion to be removed from the record in an action arising from mortgage advice and financing arrangements for a condominium purchase in Toronto.

The plaintiff opposed the removal.

The court found that the lawyer-client relationship was irreparably broken due to loss of trust and respect on both sides.

The court granted the removal order, dispensed with certain procedural requirements, and afforded the plaintiff 45 days to retain new counsel or be deemed to have served notice of intention to act in person.

No costs were awarded.

Theriault Holdings Inc. moved to dismiss a lien action brought by NDF Financial Inc. and for payment out of lien security posted into court.

NDF did not appear or oppose the motion.

The court granted the motion, discharging NDF's lien, dismissing the action, and ordering payment of the lien security to Theriault.

The court found that NDF had breached multiple interlocutory orders and completely disengaged from the litigation.

The court rejected Theriault's reliance on subrule 24.01(2) of the Rules of Civil Procedure as inapplicable to lien actions, but granted dismissal under section 47 of the Construction Act on the basis of NDF's breach of court orders.

The court held that the lien security should be returned to the party who posted it, as contemplated by the Construction Act, and that Ms. Tomas's separate dispute with Theriault regarding the power of sale proceedings was not properly before the court in this lien action.

The court dismissed Gorbern Mechanical Contractors Limited’s motion to discharge or stay Feldt Electric Ltd.’s construction lien action, despite Feldt’s non-payment of an adjudicator’s determination.

The decision finds triable issues regarding the contractual scope of work and the fairness and jurisdiction of the adjudication process.

The court declined to stay the action or return security, emphasizing the need for a trial on the merits and the importance of procedural fairness, even where a party is in breach of statutory payment obligations.