William A. Chalmers

The appellants appealed a summary judgment dismissing their action against the respondent builder.

The appellants had purchased a newly built home but failed to transfer the closing funds until 9 minutes past the 5:00 p.m. deadline on the extended closing date.

The respondent terminated the agreement relying on a 'time is of the essence' clause, but subsequently offered to revive the agreement for an additional $113,000, which the appellants paid.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that the 5:00 p.m. deadline was unambiguous, the termination was not unconscionable, the revival fee was part of a new contract rather than an impermissible penalty, and the appellants did not act under economic duress.

The court determined the scale and quantum of costs following previous motions.

Primont Homes (Vaughan) Inc. sought substantial indemnity costs, arguing delay and unproven fraud allegations by the defendants, Maplequest (Vaughan) Developments Inc. and 2373480 Ontario Inc. The defendants argued for reduced partial indemnity costs due to mixed success and over-lawyering by Primont.

The court found partial indemnity was appropriate, rejecting substantial indemnity as the fraud allegations were not adjudicated on their merits.

The court also reduced Primont's requested quantum due to its unsuccessful abuse of process argument and duplicative work by its multiple timekeepers, ultimately awarding $140,000.00 in partial indemnity costs.

This application concerned a dispute over a Costs Sharing Agreement between Manning Developments Inc. and the Municipality of Lakeshore, primarily focusing on the issue of costs.

The applicant, Manning, sought various orders compelling the respondent, Lakeshore, to fulfill obligations under the agreement, such as providing accounting, engineering drawings, and conveying land.

The court found that most of the relief sought by Manning was either moot, premature, or lacked practical utility, as Lakeshore had largely complied or was prepared to comply when conditions were met.

The court determined that Manning's conduct, including commencing and quickly discontinuing a "Misfeasance Action" against Lakeshore's council members and staff, necessitated Lakeshore bringing a separate Municipal Conflict of Interest Act (MCIA) application.

The court concluded that Manning's application constituted "harassment of another party by the pursuit of fruitless litigation" and dismissed the application.

Lakeshore was awarded substantial indemnity costs for the main application and partial indemnity costs for the related MCIA application.

The plaintiff, Primont Homes (Vaughan) Inc., sought an interlocutory injunction to prevent the defendants, Maplequest (Vaughan) Developments Inc. and 2373480 Ontario Inc., from dealing with certain land lots, asserting a contractual right to acquire them.

The defendants moved to dissolve an existing interim injunction, arguing the plaintiff failed to provide an adequate undertaking as to damages and made material non-disclosures.

The court dismissed the defendants' motions to dissolve the interim injunction, finding them precluded by Rule 2.02 due to significant delay.

The court then granted the plaintiff's motion for an interlocutory injunction, determining there was a serious issue to be tried regarding the enforceability of the agreement and entitlement to specific performance, that the plaintiff would suffer irreparable harm due to the primary defendant's inability to satisfy a damages award, and that the balance of convenience favored maintaining the injunction.

The court also found the plaintiff's undertaking as to damages sufficient given the defendants' failure to quantify their potential damages from delay.

The applicant sought leave to appeal an arbitrator's award that dismissed its claim for $19.7 million and allowed the respondent's counterclaim for $1,048,351.93 arising from a terminated construction contract.

The applicant alleged the arbitrator made 524 categorical errors of law in interpreting the contract.

The court dismissed the application, finding that the alleged errors were questions of mixed fact and law regarding the arbitrator's use of the factual matrix and subsequent conduct to determine if the contract was breached, and that the applicant failed to identify any extricable errors of pure law.

The plaintiff brought a motion to amend his statement of claim to add claims against the corporate directors for unpaid wages under the OBCA and CBCA.

One of the directors opposed the motion and brought a cross-motion to strike the existing ESA claims, arguing the claims were premature because the corporate employer had not yet been sued to judgment and execution returned unsatisfied.

The court granted the plaintiff's motion to amend, finding the claims were not clearly untenable at law and could be tried together with the corporate claims.

The court dismissed the director's cross-motion to strike, finding it was brought too late and was an improper disguised summary judgment motion.

This case involved a dispute between two groups (Strasser and Hung) who were partners in a land development project.

After deciding to end their partnership and divide the lands, an equalization payment was made based on appraisals.

The Plaintiffs (Strasser Group) sought rectification of the agreements and compensation, alleging a common mistake regarding future development charges on the industrial lands they received, which significantly inflated their value.

The court found that while a common mistake existed, the agreements themselves allocated the risk of such mistakes to the party owning the lands.

The court dismissed the Plaintiffs' claim for rectification, holding that rectification is for correcting errors in recording an agreement, not for changing the agreement itself due to a belatedly recognized error of judgment or unanticipated effects.

The Defendants' counterclaim was also dismissed.

At a case conference, the plaintiffs sought to adjourn the defendants' upcoming summary judgment motion in a solicitor's negligence action.

The plaintiffs argued they needed to obtain expert evidence regarding the standard of care, which they could only do after cross-examining the defendant lawyer due to a lack of documentary production.

The court agreed that the summary judgment motion was premature and adjourned it, directing the plaintiffs to bring a motion for leave to deliver expert evidence.

Following the dismissal of the applicant's application and motion for leave to file fresh evidence, the parties made written submissions on costs.

The respondent sought substantial indemnity costs of $110,654, arguing the applicant's conduct was reckless and the application meritless.

The court found the applicant's conduct did not rise to the egregious level required for substantial indemnity costs and awarded partial indemnity costs.

The court declined to award costs for the fresh evidence motion, finding the respondent's evidence was confusing and undisclosed.

The applicant was ordered to pay $50,000 in all-inclusive costs.

The applicant developer sought declarations and mandatory orders alleging the respondent municipality breached a Costs Sharing Agreement by failing to construct municipal services with sufficient capacity for a proposed high-density residential development.

The municipality argued the application was premature because the proposed development was not permitted under current zoning and capacity studies were ongoing.

The court dismissed the application, finding it premature and lacking practical utility, as the meaning of 'full development' in the agreement could not be determined while zoning appeals and municipal processes were still pending.

A motion to admit fresh evidence was also dismissed.

The respondent, Sherbourne Residential, sought costs of $143,145.58 following the dismissal of the applicants' application regarding a $2 million parkland holdback.

The respondent sought substantial indemnity costs based on an offer to settle, but the court found the offer was made less than seven days before the hearing, precluding substantial indemnity under Rule 49.03.

Applying the principle of reasonableness and considering the fair expectations of the unsuccessful party, the court fixed costs at $75,000 on a partial indemnity basis.

The defendant construction management firm moved under s. 44(5) of the Construction Lien Act to reduce the security it posted to vacate the plaintiff subcontractor's lien.

The parties' contract stipulated that payment was conditional on certification by an authorized engineer.

The engineer certified that the plaintiff had been overpaid, and the plaintiff provided no evidence of bad faith or fraud by the certifier.

The court held that the certifier's decision was binding and reduced the security from over $500,000 to $24,000, accounting only for unpaid holdbacks and HST.

The applicants sold a development property to the respondent.

The agreement of purchase and sale included a $2 million holdback in escrow to cover potential increases in parkland dedication requirements by the City of Toronto.

The applicants brought an application for a declaration that the conditions for the release of the holdback had been met, arguing that the City's new Official Plan Amendment did not specifically prescribe increased parkland requirements.

The court dismissed the application, finding that the Official Plan Amendment adopted by the City was sufficient to trigger the holdback provisions under the plain meaning of the contract.

The plaintiff, Richard Hefkey, sought summary judgment for wrongful dismissal and constructive dismissal against Blanchfield Roofing Company Limited.

The court addressed whether a genuine issue requiring trial existed, the permissibility of layoffs under the verbal employment agreement, the impact of a new proposed contract on constructive dismissal, the plaintiff's position and length of service, and entitlement to bonus during the notice period.

The court found Hefkey was not wrongfully dismissed by the initial layoff but was constructively dismissed when the company required him to sign a new employment contract with substantially altered terms.

The court determined his length of service was shorter than claimed due to a four-month break and awarded damages including bonus compensation, while dismissing claims for aggravated damages and the defendant's counterclaim.

The Armor defendants brought a motion to consolidate a construction lien action (Pentad v. Armor defendants) with a related bond action (Armor v. Echelon Insurance), and to transfer the bond action from Toronto to Newmarket.

The court found that while the actions shared common questions of law and fact, consolidation was not appropriate due to limitations under the Construction Lien Act, which applied to the lien action and restricted the consolidation of lien and non-lien actions and the addition of third-party defendants by counterclaim.

Instead, the court ordered the bond action to be transferred to Newmarket and both actions to be heard at the same time or one immediately after the other, with common discoveries, to avoid inconsistent findings.

The appellant, a small jewelry business, appealed the dismissal of its action against CIBC following a summary judgment motion.

The appellant claimed that Advantex and CIBC misrepresented a marketing agreement entered into in June 2012, whereby the appellant agreed to pay 14% of sales made through CIBC credit card customers.

The appellant alleged it discovered the misrepresentation in December 2015 when it noticed payment irregularities.

The motion judge found the claim was statute-barred under the Limitations Act, 2002, as it was discoverable no later than December 2012.

The Court of Appeal upheld the dismissal on the merits but reduced the costs award from $50,000 to $25,000, finding the motion judge failed to apply the principle of proportionality in a simplified procedure case.

Two consolidated appeals from motions to dismiss libel actions brought under section 137.1 of the Courts of Justice Act (anti-SLAPP provision).

The appellant, a waste management company, sued two individuals for statements made on Facebook regarding concerns about environmental contamination from the company's expanded dumping operations at a gravel pit.

The motion judges dismissed both actions, finding the statements related to matters of public interest and that the appellant failed to demonstrate that the harm suffered was sufficiently serious to outweigh the public interest in protecting the respondents' freedom of expression.

The Court of Appeal upheld the dismissals, affirmed damages awards to the respondents, and dismissed the appellant's leave to appeal the costs awards.

The plaintiffs brought a motion mid-trial to withdraw admissions made in pleadings, responses to requests to admit, and an agreed statement of facts, and sought leave to rely on new documents, after discovering a significant factual mistake regarding the legal description of lands.

The defendants opposed the motion and brought a cross-motion for a mistrial.

The parties ultimately resolved their motions by consent order, which allowed the withdrawal of inadvertent admissions and declared a mistrial.

The presiding judge recused himself from hearing the new trial due to having formed views on the evidence.

Directions were provided for the future course of the proceedings, including efforts to agree on evidence use and a prompt new trial.

The plaintiff, 2518358 Ontario Inc. ("Rise"), sought a Certificate of Pending Litigation (CPL) against a development property owned by the defendant, 3070 Ellesmere Developments Inc. ("Ellesmere").

Rise argued it had an interest in the land based on a joint venture agreement and alleged breaches by Ellesmere.

The court dismissed the motion for a CPL, finding that while there was a triable issue regarding Rise's claim to an interest in the property, the property was not unique, damages were easily calculable, and the balance of convenience did not favour granting the CPL.

The court also noted the existence of a prior construction lien registered by Rise, which served as an adequate alternative form of security, and that granting a CPL would subvert the purposes of the Construction Lien Act.

The plaintiffs moved to compel the defendants to adopt their discovery plan in an insurance action.

The court found that both parties had failed to engage collaboratively in the discovery planning process as required by Rule 29.1 of the Rules of Civil Procedure.

The Master declined to impose either party's plan, instead ordering them to return to negotiations with specific guidelines for a more detailed and collaborative approach to discovery, emphasizing proportionality and efficiency.