Todd Robinson

This case involved a construction lien action and counterclaim concerning renovation work at York University.

Monalt Environmental Inc. (subcontractor) sued BDA Inc. (contractor) for unpaid work, while BDA counterclaimed for completion costs, alleging Monalt failed to complete the full scope of demolition work, specifically stairs and a ceiling slab.

The court found that Monalt's contractual scope of work did include the disputed demolition.

Monalt breached the contract by refusing to complete this work and suspending operations without a contractual basis for demanding payment.

BDA was justified in withholding payment.

The court assessed BDA's proven damages for completion costs and set them off entirely against Monalt's claim for unpaid amounts, resulting in no net amount owing to Monalt and no judgment for either party on their respective claims.

Praxy Cladding Corp. brought a motion to compel answers to refused questions and further answers to undertakings given at the examination for discovery of Stone Lamina Inc. and GCAT Group Inc. The court granted the motion in part, ordering further answers to some undertakings and many refused questions, and setting a deadline for further examinations.

The balance of the motion was dismissed.

The decision clarifies principles of relevance and proportionality in discovery, particularly in the context of construction lien actions.

The Bank of Nova Scotia ("BNS") sought summary judgment against former spouses Danilo Milosevic and Dusica Grabovica for a joint line of credit debt.

The court found no genuine issue requiring a trial regarding Mr. Milosevic's liability for the debt itself, affirming joint and several liability.

However, a genuine issue was found regarding the precise accounting of the debt, specifically the applicable interest rate and calculation of accrued interest, which was ordered to proceed to a trial of the issue.

Ms. Grabovica's liability was already set for a mini-trial concerning her signature's authenticity.

Costs were reserved to the trial judge.

Insite Construction Management Inc. (applicant) brought a motion to compel Ambient Mechanical Ltd. (respondent) to serve a further and better affidavit of documents, arguing that Ambient had refused to produce documents relevant to project costing in a lien action.

Ambient contended that all relevant documents had been disclosed, the requested documents were irrelevant based on the pleadings, and the request was overly broad.

The court dismissed Insite's motion, finding that the project costs were not relevant given the current pleadings, which primarily focused on whether Insite performed any work at all.

The dismissal was without prejudice, allowing Insite to revisit the production request if relevance is established through examinations for discovery.

Ambient was awarded partial indemnity costs.

The defendant moved to declare the plaintiff's construction lien expired and to dismiss the action in its entirety.

The plaintiff conceded the lien had expired but opposed the dismissal of its joined contract claim.

The court declared the lien expired and vacated the registrations but refused to dismiss the contract claim, finding insufficient evidence of prejudice or undue delay solely attributable to the plaintiff.

The contract claim was permitted to continue as an ordinary action under the Rules of Civil Procedure.

This was a costs-only decision arising from a settled motion for default judgment in a construction lien action.

The moving party had sought default judgment validating a lien and personal judgment, but the motion was resolved by consent through setting aside the noting in default and requiring delivery of a defence, leaving only costs in dispute.

The court declined to award costs of the motion because the merits were not argued and it could not determine necessity or success, but awarded full costs thrown away from the noting in default in the amount of $651 including HST.

The court preserved the balance of the moving party’s claimed motion costs as potentially claimable costs of the action and provided non-binding commentary on unresolved procedural and jurisdictional questions concerning default judgment in lien actions.

The defendant/plaintiff by counterclaim, a corporation, brought a motion seeking leave under Rule 15.01(2) of the Rules of Civil Procedure to be represented by its sole director, officer, and shareholder, a non-lawyer.

The opposing parties argued the action was complex and the representative would be a key witness.

The court granted the motion, finding the representative capable of advocating for the single-person corporation and noting there is no principled reason to deny leave when an individual would have the right to self-represent.

The defendants, Mirella Cesario-Valela and Vito Valela (the 'Owners'), sought leave to issue a third-party claim against Garrison Creek Construction Inc. ('Garrison'), alleging it was an alter ego of the plaintiff, Backyard XP Inc. The court dismissed the motion, finding that under the Construction Act, a third-party claim must be for contribution or indemnity, not for damages as proposed by the Owners.

The court emphasized that the Act's scheme does not permit adding non-parties by counterclaim or third-party claim for general damages, even if judicial efficiency might suggest otherwise.

Royal Bank of Canada (RBC), as assignee of Monster Snacks Inc., moved for leave to amend the statement of claim to name itself as plaintiff and particularize allegations against the defendant.

The defendant opposed, arguing the proposed amendments pleaded new, statute-barred facts and causes of action, and did not comply with pleading rules.

The court granted an unopposed order to continue the action with RBC as plaintiff but dismissed the motion to amend.

The court found that the proposed amendments introduced fundamentally different, statute-barred claims based on new facts not originally pleaded, and that the pleading itself failed to comply with the rules of pleading, particularly regarding misrepresentation particulars.

Costs were awarded to the defendant.

The moving party defendants sought leave to amend their statement of defence to add a single sentence alleging the plaintiff failed to mitigate her damages.

The plaintiff opposed the motion, arguing the proposed amendment lacked sufficient particulars.

The court dismissed the motion, finding that given the specific allegations of solicitor negligence, sexual assault, and psychological manipulation, a bare mitigation defence was legally untenable without further particulars.

The dismissal was without prejudice to the defendants moving again with a properly particularized pleading.

The defendant, Balwinderjit Singh, brought a motion to set aside a default judgment issued against him in 2015 by The Toronto-Dominion Bank (TD Bank) for an alleged credit card debt.

Singh claimed he was unaware of the judgment until June 2022 and argued the debt arose from unauthorized fraudulent transactions.

The court dismissed the motion, finding Singh's explanation for his default implausible given evidence of prior communications and garnishments, and concluding that his proposed defence lacked an "air of reality" due to insufficient particulars.

Mobilinx, a subcontractor, brought an ex parte motion seeking an order to declare Edge1 Equipment Rentals Inc.'s lien expired under section 45 of the Construction Act, arguing the lien was preserved out of time.

Mobilinx contended that the former Construction Lien Act (CLA) applied to the project because a procurement process commenced before July 1, 2018.

The court dismissed the motion without prejudice, emphasizing the high evidentiary burden for ex parte motions seeking a final order under section 45.

The evidence, based on a law clerk's affidavit relying on double hearsay from a website, was deemed insufficient and unreliable to prove the procurement commencement date or to clearly connect Edge1's lien to the specific improvement.

The decision highlighted the critical distinction in evidentiary requirements between interlocutory motions to vacate a lien under section 44 and final motions to declare a lien expired under section 45.

The owner brought an ex parte motion to declare the contractor's construction lien expired.

The court found that the owner failed to provide sufficient evidence to prove that the contract had been completed, noting discrepancies between the purchase order and the claim for lien.

The motion was dismissed without prejudice to moving again on notice to the lien claimant.

Siemens Canada Limited brought a motion for summary judgment seeking to limit its liability to Symtech Innovations Ltd. to admitted holdback and to dismiss Symtech's significant prolongation claim.

The court found that Symtech failed to provide timely contractual notice of its prolongation claim, which was a condition precedent to maintaining the claim.

Consequently, the prolongation claim was dismissed.

However, the court found genuine issues requiring a trial regarding Siemens' alleged breaches of the sub-subcontract and the quantification of other earned and unpaid amounts.

The court also declined to grant summary judgment in a related breach of trust action, noting jurisdictional differences.

This is a costs decision following a trial of an issue in a construction lien action.

The Torgerson Defendants sought substantial indemnity costs from Bellsam Contracting Limited.

The court found the Torgerson Defendants' overall costs claim excessive and disproportionate, particularly given the limited scope of the trial of an issue.

While acknowledging the Torgerson Defendants' success and their beating an offer to settle, the court significantly reduced the claimed costs, fixing them at $287,500 inclusive of HST and disbursements, payable by Bellsam.

The decision also addressed the recoverability of eDiscovery specialist fees.

The respondent law firm brought a motion for security for costs against the applicant, citing the applicant's non-residency and the alleged frivolous and vexatious nature of the application, coupled with insufficient assets.

The court dismissed the motion, finding that an order for security for costs would not be just.

The court emphasized the respondent's unreasonable delay in bringing the motion and the protective purpose of the Solicitors Act, which facilitates client assessment of solicitor accounts.

The court also found merit in the applicant's assessment claim.

The defendant, Toronto Transit Commission (TTC), brought a motion for leave to amend its statement of defence in a wrongful dismissal action.

The plaintiff, David Moskowitz, did not oppose the amendment but sought costs thrown away from cancelled discoveries as a term of the amendment, and also requested case management and a litigation timetable.

The court granted leave to amend without awarding costs thrown away to the plaintiff, denied the request for case management, but imposed a litigation timetable.

The court found the plaintiff's position on costs disproportionate and ordered the plaintiff to pay the defendant's costs of the motion.

The plaintiff, Newton Crypto Ltd., brought a motion to strike the statements of defence of several defendants for failing to meet the minimum level of material fact disclosure required by the Rules of Civil Procedure, particularly regarding particularized allegations of fraud.

The court found the defences deficient, consisting of non-specific and blanket denials without providing the defendants' own version of facts.

The court rejected the defendants' argument regarding self-incrimination.

The statements of defence were struck, but with leave to amend within 20 days, and costs were awarded to the plaintiff.

This decision provides supplementary reasons following a motion for a certificate of pending litigation.

The court addresses an improper communication from the unsuccessful parties' counsel questioning the evidentiary basis of the prior decision, specifically regarding a mortgage on the subject property.

The court clarifies that direct communication with the court without prior consent or direction is a breach of Rule 1.09 of the Rules of Civil Procedure.

The court also confirms that the title abstract showing the mortgage was part of the evidentiary record and that its presence or absence does not alter the original assessment of equities or the decision.

The plaintiff, Katherine Lee, brought a motion seeking leave to issue a certificate of pending litigation (CPL) against a property, alleging a one-half beneficial interest that was fraudulently conveyed by her father, Yunchang Li, to himself and her elder sister, Yahong Li.

The court found that the plaintiff established a prima facie case of fraud, citing several "badges of fraud" including the transfer occurring without notice, nominal consideration, and a non-arm's length relationship.

The court also determined there was a high probability of success for the plaintiff's claim and that the equities favored granting the CPL, as damages would not be an adequate remedy.

The motion for CPL was granted, and costs were awarded to the plaintiff on a partial indemnity basis, with a reduction due to the plaintiff's procedural error in under-booking the initial motion hearing.