Todd Robinson

The defendants in three related construction lien and non-lien actions moved for security for costs against the plaintiff subcontractor.

The court found good reason to believe the corporate plaintiff had insufficient assets in Ontario, as it had ceased operations and its only assets were contingent claims.

The plaintiff failed to prove impecuniosity, having provided insufficient evidence of its inability to raise funds from shareholders or affiliates.

The court ordered the plaintiff to post security for costs in the aggregate amount of $215,000 on a staged basis, reducing the defendants' requested $500,000 to account for the significant counterclaims advanced by the defendants.

The plaintiff moved to strike the defendant's statement of defence due to the defendant's failure to pay over $49,000 in prior costs awards.

The defendant argued he had attempted to pay by monthly installments, which the plaintiff refused after an initial payment.

The court dismissed the motion to strike, finding the defendant's conduct did not yet warrant the severe remedy of striking his pleading.

However, the court refused to order a payment plan and imposed a peremptory 30-day deadline for the defendant to pay the outstanding costs in full, failing which the plaintiff could renew the motion to strike.

The plaintiff brought a motion to amend its statement of claim to correct a misnomer in its name, changing it from 'Urban Life Residential, In Trust' to 'Urban Life Residential Inc., In Trust', and to extend the time to file a trial record.

The defendant opposed and brought a cross-motion for summary judgment dismissing the action, security for costs, and to discharge a certificate of pending litigation (CPL).

The court granted the plaintiff's motion to amend, finding it was a case of misnomer and the defendant was not misled.

The court dismissed the defendant's cross-motion for summary judgment, finding genuine issues for trial regarding the identity of the purchaser and the validity of the trust.

The requests for security for costs and discharging the CPL were also dismissed.

The plaintiff contractor and defendant owners disputed which of two quotes formed the basis of their construction contract for a medical clinic build-out.

The court held that the plaintiff's December 2018 quote constituted a valid offer that was accepted by the defendants through an agent who had ostensible authority to bind the plaintiff.

The court found that the subsequent January 2019 quote was never accepted and lacked consideration, and therefore did not amend the contract.

The court also determined that the contract was solely between the plaintiff and the defendants' corporate entity, not the individual defendants.

The plaintiffs commenced an action claiming over $1 million in unpaid loans and an unrecorded security interest in several properties.

They obtained ex parte certificates of pending litigation (CPLs) against five properties that had been sold to the moving defendants.

The moving defendants, claiming to be bona fide purchasers for value without notice, brought a motion to discharge the CPLs.

The court found that while the plaintiffs had a triable claim, the balance of convenience and equities favoured discharging the CPLs, as damages would be a satisfactory remedy and the plaintiffs failed to demonstrate that the moving defendants were knowingly involved in a scheme to defeat their claims.

The motion was granted and the CPLs were discharged.

The court heard three service and pleadings-related motions in a complex fraud action.

The defendant Mark Gross successfully moved to set aside a prior ex parte order validating service on him, arguing the claims against him were intertwined with insolvent corporate defendants and should be addressed in commercial list insolvency proceedings.

Three numbered company defendants successfully moved to set aside their noting in default, as they had not been given notice of the default proceedings while a motion to validate service on them was pending.

The plaintiffs' motion to validate service was granted for the numbered companies and one individual defendant who had actual notice, but dismissed regarding other defendants due to insufficient evidence of notice or efforts to serve.

The defendants brought a motion to dismiss or permanently stay the plaintiff's construction lien action, arguing that the plaintiff failed to immediately disclose a settlement and assignment agreement with the original lien claimant, contrary to the rule in Handley Estate.

The court found that the settlement and assignment did not fundamentally alter the adversarial orientation of the litigation, as the assignee and the defendants were already adverse in interest and the original claimant's role in providing evidence did not constitute a reversal of its pleaded position.

The motion was dismissed.

The defendants brought a motion for partial summary judgment in a construction lien action, seeking a determination that the Consumer Protection Act (CPA) applied to their residential cost-plus construction contract and that the plaintiff breached the CPA by exceeding budget estimates by more than 10 percent.

The court granted the motion in part, declaring that the CPA applies to the contract and that it is a 'consumer agreement'.

However, the court found genuine issues requiring a trial regarding whether the specific budget line items constituted 'estimates' under the CPA and whether the parties had agreed to amend those estimates during the project.

The plaintiff advanced funds to his common-law stepson to purchase a property.

A dispute arose over the terms of the oral loan agreement and whether the plaintiff was intended to have a mortgage.

The plaintiff moved for a certificate of pending litigation (CPL), and the defendant moved to amend his statement of defence and to remove a notice registered by the plaintiff under the Land Titles Act.

The court granted the defendant leave to amend, finding no breach of settlement privilege.

The court dismissed the plaintiff's motion for a CPL, finding that while there was a triable issue regarding an equitable mortgage, the equities favoured the defendant.

The court also ordered the removal of the plaintiff's registered notice.

The defendant was substantially successful on a motion to discharge the plaintiff's construction lien and dismiss the primary causes of action.

The defendant sought substantial indemnity costs of $31,817.06, arguing a pre-motion letter constituted an offer to settle.

The court found the letter was merely a demand, not an offer to settle, and awarded partial indemnity costs.

After considering the divided success on some arguments and the complexity of the motion, the court fixed costs payable by the plaintiff to the defendant at $20,000 inclusive of HST and disbursements.

The moving party, Michael Shtaif, was unsuccessful on a motion seeking to declare an assignment of judgment and certificates of judgment invalid.

The responding party sought full indemnity costs of $35,376.01, arguing the motion was an abuse of process and a collateral attack on prior decisions.

The court found the moving party's conduct amounted to an abuse of process but did not rise to the rare and exceptional level required for full indemnity costs.

The court awarded substantial indemnity costs fixed at $25,278.21.

The defendants brought a motion for security for costs against the plaintiff, a corporate entity that had ceased operations and had no assets.

The plaintiff opposed the motion, arguing impecuniosity and that its claim for breach of contract had a high probability of success.

The court found that the plaintiff failed to meet the high evidentiary threshold to prove impecuniosity, as it did not provide sufficient evidence regarding the financial ability of its shareholders to fund the litigation.

The court also found the merits of the claim to be a neutral factor.

The court ordered the plaintiff to post $85,000 in security for costs, payable in four installments.

The plaintiffs brought a motion to substitute HCN-Revera Leasee (Alta Vista LP) as a defendant and amend their statement of claim in an action arising from alleged negligence and elder abuse at a retirement home.

The defendants opposed, arguing the amendment sought to add a new party after the expiry of the two-year limitation period.

The court found that while the limitation period had expired, the amendment was a genuine correction of a misnomer, as the 'litigation finger' clearly pointed at the proposed defendant.

Finding no non-compensable prejudice, the court granted the motion to correct the misnomer and awarded costs to the plaintiffs.

The parties were unable to resolve the costs of a motion and cross-motion.

The moving defendants sought substantial indemnity costs, arguing the plaintiffs' claim lacked merit and delayed the proceeding.

The court rejected the request for substantial indemnity costs, finding no sanctionable conduct by the plaintiffs.

After considering divided success, excessive hours claimed, and unsubstantiated disbursements, the court fixed costs payable by the plaintiffs to the moving defendants at $10,000 inclusive of HST and disbursements.

The plaintiffs brought a motion to compel production of documents, answers to refused questions, and re-attendance for further examinations of several defendants and a non-party witness following cross-examinations on an affidavit and examinations under Rule 39.03.

The examinations were conducted in the context of a pending motion by the defendant Purchaser Corporations to discharge certificates of pending litigation.

The court granted partial relief, ordering the production of share purchase agreements and answers to specific questions regarding corporate control and share transfers, finding them relevant to the bona fides of the property transactions.

The court dismissed the requests for voluminous due diligence documents as overbroad and declined to order re-attendance for further examinations.

The plaintiff architect brought a construction lien action for unpaid fees against the defendant developer of a high-rise condominium.

The developer counterclaimed for delay and impact damages, alleging the architect failed to coordinate consultant drawings and made design errors.

The court found the architect's coordination duty was limited to cooperating with other consultants, not managing them.

The architect met the professional standard of care and validly suspended services for non-payment.

The court awarded the architect $55,906.54 for agreed base services but dismissed claims for unapproved extras.

The developer's counterclaim was dismissed entirely.

Following the voluntary release of a construction lien by the plaintiff, the defendant moving party sought substantial indemnity costs of $19,932.03 for its motion to discharge the lien.

The plaintiff argued for nominal costs or costs in the cause.

The court awarded partial indemnity costs of $7,000 to the defendant, finding that while the defendant was entitled to costs, the amount claimed was disproportionate and the defendant had engaged in over-preparation and failed to respond to a statutory request for information.

The self-represented plaintiff succeeded in a construction lien action, recovering $8,277.97 after claiming over $67,000.

The defendants, who failed on their $112,000 counterclaim, argued the plaintiff should be denied costs because the recovery fell within the Small Claims Court jurisdiction and because of an unaccepted offer to settle.

The court held that the Small Claims Court lacks jurisdiction over lien actions, making Rule 57.05(1) inapplicable.

The court awarded the plaintiff $9,000 in partial indemnity costs, reducing the amount due to his failure to engage in reasonable settlement negotiations.

The plaintiff contractor brought a motion for summary judgment to perfect a construction lien for unpaid renovation work following a flood at the defendant's property.

The defendant homeowner argued the contracts were part of an insurance scheme and that work was incomplete or deficient.

The court found no genuine issue requiring a trial, rejecting the defendant's uncorroborated evidence and finding the plaintiff completed the contractual scope of work.

Summary judgment was granted in favour of the plaintiff for $79,329.10.

The plaintiff brought a motion to compel answers to undertakings and refusals given during an examination for discovery, specifically seeking unredacted copies of a credit agreement, its amendments, and calendar appointments in native format.

The court found that the credit agreement and its amendments were captured by the discovery requests and were relevant to the pleadings.

The court ordered production of the agreements but permitted limited redactions for irrelevant and commercially sensitive information, rejecting the defendants' broad redactions.

The court also ordered the production of calendar appointments in native format as impliedly required by the parties' discovery plan.