William F. Kelly

The defendants brought a motion to dismiss the plaintiff's construction lien action for delay under section 47 of the Construction Act and Rule 24.

The action had been delayed for seven years, partly due to an ill-conceived and legally impossible attempt to transfer the lien action to the Small Claims Court.

The court found that despite the plaintiff's egregious delay, a fair trial was still possible as the issues were simple and the defendants' claimed prejudice was unrelated to the delay.

The motion was dismissed, but the court awarded $1,500 in costs to the unsuccessful defendants due to the plaintiff's failure to advance the claim.

The applicant brought a motion seeking an order for his 99-year-old mother to undergo a capacity assessment pursuant to s. 105 of the Courts of Justice Act, and for the continuation of the Estate Trustee During Litigation (ETDL).

The applicant raised concerns about his mother's capacity to act as estate trustee following her examination out of court, where she provided non-responsive answers and demonstrated a lack of understanding of the estate's multi-million dollar debts.

The court found that the mother's capacity was in issue and ordered the assessment, balancing her privacy rights against the need to protect the vulnerable estate.

The court also granted a mandatory injunction to continue the ETDL's mandate to maintain the status quo pending the capacity assessment and the main application.

The plaintiffs sought summary judgment for damages arising from the defendants' anticipatory repudiation of an agreement to purchase a waterfront property.

The plaintiffs resold the property for $325,000 less than the original contract price and claimed the difference plus additional commission costs as damages.

The court determined the proper assessment date for damages was the intended closing date of the original agreement.

However, the court found that the resale price alone was insufficient to prove market value in these circumstances and that there was a genuine issue regarding mitigation.

The court directed the parties to file further expert evidence on market value and mitigation to allow the damages to be determined under the court's enhanced fact-finding powers on summary judgment.

The applicant lawyer brought a motion to release funds held in trust to his client, a subcontractor who had registered a construction lien.

The respondent contractor had paid the funds into trust to discharge the lien but argued the payment was akin to security paid into court and should be returned since the limitation period for the subcontractor to perfect the lien had expired.

The court found that the funds were paid for the benefit of the subcontractor subject to any claims by the contractor, and since the contractor failed to bring a claim within the limitation period, the funds constituted a trust under s. 8 of the Construction Lien Act and were ordered released to the subcontractor.

The applicants sought an assessment of their former lawyer's accounts, the release of their file, and a stay of enforcement of an $80,000 mortgage given to the lawyer's spouse for legal fees.

The court found no special circumstances to justify assessing 14 accounts rendered prior to November 2012, except for a limited review of an alleged double-billing error.

The court ordered the lawyer to release the file, finding the solicitor's lien was lost because the lawyer had terminated the retainer.

Enforcement of the mortgage was stayed pending the outcome of the assessments.