Todd Robinson

The plaintiff sub-subcontractor moved for summary judgment on its construction lien claim against the defendant subcontractor.

The defendant cross-moved to withdraw a prior admission regarding the quantum of the lien and to amend its defence to claim set-offs for deficiencies alleged by the general contractor, as well as relying on a 'pay-when-paid' clause.

The court granted the defendant leave to withdraw the admission and amend its defence.

The court granted partial summary judgment to the plaintiff, fixing the quantum of the lien at $414,049.99, but directed a trial on the issue of whether the 'pay-when-paid' clause was agreed to and enforceable.

The plaintiff, Schindler Elevator Corporation, moved for the production of fully unredacted minutes of settlement between the defendants (WBP) and a third party (Yuanda).

WBP had produced a partially redacted version, claiming settlement privilege over the financial terms.

The court found that while the specific settlement amounts should remain privileged, other redacted information relevant to the apportionment of delay and quantification of damages must be disclosed to ensure procedural fairness at the upcoming trial.

The court ordered WBP to produce a further version of the minutes with only the specific settlement amounts and payment dates redacted.

In a subrogated action for property damage caused by a leaking reverse osmosis system, the defendant Aquasoft moved to compel answers to undertakings and refusals, and for disclosure of foundational information relied upon by the plaintiff's experts.

The plaintiff cross-moved to compel Aquasoft to produce a representative for discovery and for a further and better affidavit of documents.

The court dismissed the defendant's request for foundational expert information, holding that under Rule 31.06(3), only findings, opinions, and conclusions are required at the discovery stage, while foundational data is not required until an expert report is served under Rule 53.03(2.1).

The court ordered the plaintiff to answer certain undertakings and refusals, and granted the plaintiff's cross-motion, ordering Aquasoft to produce a representative for discovery and serve a further and better affidavit of documents regarding pre-2014 invoices.

Costs were awarded to the plaintiff.

The moving party sought an order authorizing a US attorney to conduct the examination and cross-examination of US-based delay experts at an upcoming trial in a construction lien reference.

The responding parties opposed the motion, arguing the Law Society Act prohibits non-licensees from providing legal services in Ontario.

The Master dismissed the motion, finding that the clear and precise language of section 26.1 of the Law Society Act removed any inherent jurisdiction of the court to permit a non-licensee to provide legal services, and a reference master has no greater discretion than the court.

The court determined the costs of four motions, including motions to amend the statement of claim and for trial together with a related action.

The court found that the costs of the amendment motions should be in the cause, as they would have been incurred in any event and the defendants did not unreasonably oppose them.

For the motions for trial together, the court ordered each party to bear their own costs, as the relief was mutually beneficial and neither side substantively opposed the other's motion.

The plaintiffs brought a motion for a status hearing pursuant to Rule 48.14(5) of the Rules of Civil Procedure, seeking a timetable for remaining steps in a subrogated action arising from water damage caused by a fire suppression system.

The defendant opposed the motion, arguing the action should be dismissed for delay.

The court found that the plaintiffs failed to provide an acceptable explanation for the delay of over three years and failed to tender any evidence to rebut the strong presumption of prejudice to the defendants.

The action was dismissed for delay with costs.

Following a trial where the plaintiff contractor failed to prove entitlement to a construction lien and the defendant owners obtained a nominal judgment of $738.20 on their set-off defence, both parties sought costs.

The court noted divided success, as the plaintiff successfully established the owners breached the contract, but the owners successfully defeated the lien claim.

Given the divided success and the expiration of the owners' settlement offers prior to trial, the court ordered that each party bear their own costs.

The moving defendants in a solicitor negligence action brought a motion to remove the plaintiff's lawyer from the record and for production of his litigation files.

The defendants argued the lawyer was likely to be a material witness regarding the plaintiff's efforts to mitigate damages on an appeal.

The court granted the motion to remove the lawyer, finding he was likely to be called as a witness and his role as advocate could not be reconciled with his role as a witness.

The motion for production of the litigation files was dismissed as premature and overbroad.

The court heard four procedural motions, including motions for trial together, transfer of a Small Claims Court action, and leave to amend pleadings.

The parties reached an agreement on most issues prior to the hearing.

The court ordered that this action and a related action be tried together with common discoveries, and granted the plaintiff leave to amend the statement of claim.

The motion to transfer the Small Claims Court action was adjourned to be heard by a judge, as a Master lacks jurisdiction under section 107 of the Courts of Justice Act.

The decision on a separate motion for trial together by another set of defendants was reserved.

The plaintiffs brought a motion for a status hearing under Rule 48.14(5) to prevent the administrative dismissal of their defamation action for delay.

The defendants opposed the continuation, arguing actual prejudice and seeking dismissal.

The court found the plaintiffs provided a passable explanation for the delay, largely due to solicitor misapprehension regarding file carriage, and that the defendants suffered no non-compensable prejudice.

The motion was granted, the action was permitted to continue, and a timetable was set for remaining steps.

The plaintiff subcontractor brought a motion to compel the defendant general contractor to answer questions refused and provide further answers to undertakings given during an examination for discovery.

The underlying action involved a construction dispute over project delays and the termination of the plaintiff's subcontract.

The court first struck several paragraphs from the plaintiff's supporting affidavit for containing improper legal argument.

On the substantive discovery issues, the court ordered the defendant to answer the majority of the outstanding undertakings and refusals, including producing unredacted copies of requests for information (RFI) logs and progress certificates, finding them relevant to the issues of delay and payment.

The plaintiff contractor registered a construction lien for unpaid services and materials relating to a home renovation.

The defendant owners counterclaimed for overpayment, structural damage, and costs to correct deficiencies.

The court found that the owners breached the contract by engaging another contractor to perform work within the plaintiff's scope, justifying the plaintiff's termination of the contract.

However, after assessing the value of the work actually completed and allowing set-offs for deficiencies and overcharges, the court determined the plaintiff had been overpaid.

The lien claim was dismissed, and the owners were awarded nominal damages of $738.20.

The plaintiff sought costs of $5,379.80 on a partial indemnity scale following a motion to compel answers to undertakings and refusals.

The defendant argued no costs should be awarded due to divided success, as the plaintiff only obtained orders for 10 of the 27 undertakings and refusals argued.

The court found that while success was divided, the motion was necessary to compel compliance and the defendant had taken an improper position regarding access to its records.

The court awarded the plaintiff costs fixed at $2,000 inclusive of HST and disbursements.

The defendant in a wrongful dismissal action brought a motion to compel the plaintiff to answer five questions refused during his examination for discovery.

The refused questions related to a motor vehicle accident the plaintiff was involved in prior to his termination, and the subsequent litigation and settlement arising from it.

The defendant argued the information was relevant to mitigation and preventing double recovery.

The Master dismissed the motion, finding that the payment obligations of an unrelated tortfeasor are distinct from those of an employer, and therefore the motor vehicle accident litigation was not relevant to the quantification of wrongful dismissal damages.

The plaintiff moved under Rule 30.06 for a further and better affidavit of documents from the defendants, seeking client lists, contracts, financial records, and communications.

The court found that the plaintiff failed to meet its evidentiary onus to prove on a balance of probabilities that the requested documents existed and remained in the defendants' possession, control, or power.

The motion was dismissed without prejudice to bringing it again after discoveries.

The moving defendants brought a motion to compel answers to questions refused by the plaintiffs during examinations for discovery, including questions answered under Rule 34.12(2).

The court declined to make a blanket ruling deferring all Rule 34.12(2) answers to the trial judge, opting to rule on relevance for discovery purposes while leaving trial admissibility to the trial judge.

The court found that questions regarding past development applications and the plaintiffs' own redevelopment intentions were improperly refused and must be answered.

However, questions regarding the plaintiffs' current willingness to accept integration features, the substance of settlement discussions, and the plaintiffs' financial information were properly refused.

The court held that pleading the fact of settlement discussions to explain delay does not waive settlement privilege over the substance of those discussions.

The plaintiff, Gavita Canada Inc., brought a motion to compel the defendant, National Grower Supply Inc., to deliver a supplementary affidavit of documents and attend an examination for discovery, and for costs.

The defendant opposed, arguing the action was stayed under Rule 11.01 of the Rules of Civil Procedure due to Gavita's amalgamation, which it claimed constituted a transfer of interest.

The court found that amalgamation under the Canada Business Corporations Act does not result in a transfer or transmission of interest, and therefore, the action was not stayed.

The court granted the plaintiff's requests, compelling document production and discovery, and awarded costs thrown away due to the defendant's improper conduct at the prior examination.

The plaintiff successfully moved to set aside a registrar's dismissal order and sought costs of $7,680 on a partial indemnity basis.

The defendant argued that the plaintiff was granted an indulgence and each party should bear their own costs.

The court found that while the plaintiff received an indulgence, the defendant unreasonably opposed the motion on the basis of prejudice that was caused by its own lack of diligence.

The court awarded the plaintiff reduced costs of $500, noting that much of the time claimed was unsubstantiated or for steps the plaintiff would have had to take regardless of the defendant's opposition.

The defendants brought a motion seeking payment of costs from a successful summary judgment motion, an order to strike the plaintiff's defence to their counterclaim if costs were not paid, and a stay of the plaintiff's pending summary judgment motion.

The Master dismissed the defendants' motion, finding no jurisdiction to stay a judge's order and determining that the defendants' arguments regarding the enforceability of costs were not without merit, but ultimately unsuccessful.

As the successful party on the motion, the plaintiff was awarded partial indemnity costs.

The defendant brought a motion seeking to compel the plaintiff to deliver particulars, comply with a request to inspect documents, deliver a further and better affidavit of documents, re-attend an examination for discovery to answer a refusal regarding damages, and amend its statement of claim.

The court found divided success.

The demand for particulars was dismissed as procedurally improper after discoveries.

The request to inspect documents and the request for a further and better affidavit of documents were partially granted, requiring production of certain trademark and financial documents but not proprietary recipes or broad tax/banking records.

The plaintiff was ordered to re-attend discovery to answer questions on damages, deferred for 60 days.

The request to compel amendment of the statement of claim was dismissed.

No costs were awarded.