Zachary David Flemming-Giannotti

The defendants brought a motion to strike the plaintiff's statement of claim under Rule 21.01(1)(b), arguing it disclosed no reasonable cause of action in contract, negligence, or negligent misrepresentation, and that it was statute-barred.

The plaintiff alleged the defendants, operating under an unregistered business name, defectively designed and installed a geothermal energy system.

The court held that the plaintiff properly pleaded a contract based on a proposal document and that the negligence claims were viable.

The court also found it was not plain and obvious that the limitation period had expired, as the plaintiff pleaded it discovered the damage within the two-year period.

The motion was dismissed.

This endorsement addresses a motion by TruGrp Inc. to set aside a prior vacating order, specifically concerning the interpretation of the Accountant of the Superior Court of Justice's role as custodian of lien security and the substitution of a letter of credit with a bank draft.

The court had previously directed that the Accountant and the Bank of Montreal (BMO) be served to provide their positions.

Both the Accountant and BMO confirmed that a bank draft could be accepted under specific conditions outlined in the letter of credit or with a further court order for substitution.

TruGrp's concerns regarding lien security extinguishment were addressed by these positions, leading to the effective withdrawal of the motion on its merits, with only costs remaining in dispute.

TruGrp Inc. moved to set aside an ex parte order vacating its construction liens, arguing that the form of letter of credit used as security was uncertain and inconsistent with the Construction Act and the Accountant's statutory role.

Karmina Holdings Inc. opposed, arguing the motion was meritless and that the letter of credit form was standard.

The court dismissed Karmina's procedural challenges but adjourned the motion to allow the Accountant of the Superior Court of Justice and the Bank of Montreal to make submissions on the core dispute regarding the sufficiency and statutory compliance of the letter of credit.

The tenant brought a motion for various relief against the landlord, including setting aside a distress sale and lease termination, and seeking relief from paying rent during COVID-19 lockdowns.

The court previously granted the tenant's requests regarding the termination and distress sale but required the tenant to pay post-NOI rent.

On the issue of costs, both parties sought costs.

The court found that success was divided and, given the tenant's continued significant default in rent payments, ordered that no costs be payable by either party.

The tenant filed a Notice of Intention to Make a Proposal under the Bankruptcy and Insolvency Act.

The landlord attempted to terminate the commercial lease for non-payment of post-NOI rent and claimed to have completed a distress sale of the tenant's chattels just prior to the NOI filing.

The tenant brought a motion to set aside the lease termination and the distraint, and sought relief from paying rent during the COVID-19 shutdown.

The court set aside the lease termination, finding the landlord acted precipitously without giving the tenant reasonable time to deliver promised rent cheques.

The court also set aside the distraint, finding the sale was not completed prior to the NOI and did not comply with the Commercial Tenancies Act.

However, the court held the tenant was not relieved from paying post-NOI rent due to the pandemic shutdown.

The applicants, farmers with multiple mortgages held by the late Leo Goodman, applied for a discharge of the mortgages, arguing they had been paid in full.

The parties disputed the outstanding balance due to poor record-keeping and an unresolved 2008 Farm Debt Mediation Act agreement.

The court determined four preliminary issues to assist the parties in reconciling the accounts: it found a 2008 Interim Agreement was an unenforceable agreement to agree, a $60,000 promissory note was unenforceable, the respondent failed to prove certain construction mortgage advances, and a $15,144 legal account was extinguished by the mediation agreement.

The court directed the parties to re-evaluate their positions based on these findings.

Varcon Construction Corporation appealed a partial summary judgment granted to 2099082 Ontario Limited (AWD Contractors) concerning a construction subcontract dispute.

Varcon's appeal challenged findings that AWD's work was not deficient and that AWD did not fail to rectify deficiencies.

AWD cross-appealed the motion judge's decision to order a trial on the subcontract's warranty provisions.

The Court of Appeal dismissed Varcon's appeal, finding no palpable and overriding errors in the motion judge's factual findings.

The Court allowed AWD's cross-appeal, determining there was no genuine issue requiring a trial on the warranty, as a plain reading of the contract did not support Varcon's interpretation that AWD was a general guarantor for all project defects.

The appellants sought to appeal a motion judge's decision dismissing their motion to stay an action in favour of arbitration.

The respondents raised a jurisdictional objection based on section 7(6) of the Arbitration Act, 1991, which provides that there is no appeal from the court's decision on a motion to stay.

The Court of Appeal held that section 7(6) precludes any appeal from a decision on a motion to stay, whether granting or refusing the stay, and therefore dismissed the appeal on jurisdictional grounds without reviewing the motion judge's analysis.

The defendants brought a motion to dismiss the action for delay under Rule 24.01(1) of the Rules of Civil Procedure, citing the plaintiffs' two years of inaction and failure to respond to correspondence.

The plaintiffs argued the defendants were in default for not delivering affidavits of documents and offered an explanation for their delay.

The court found the defendants were not in default due to rule amendments and rejected the plaintiffs' explanation as incredible.

However, the court declined to dismiss the action, noting that "contumelious" delay typically requires serial violations of court orders, which was not present.

The motions were dismissed without prejudice, but the plaintiffs were ordered to pay $11,000 in costs to the defendants and to deliver their affidavit of documents within 30 days, with defendants to follow 30 days thereafter.

The plaintiff, 2099042 Ontario Limited (AWD), brought a motion for summary judgment to dismiss the counterclaim of the defendant, Varcon Construction Corporation (Varcon).

Varcon's counterclaim sought damages for alleged deficient work, failure to warn, and failure to rectify deficiencies by AWD, which Varcon claimed led to a sewage system failure due to soil consolidation.

The court found that AWD's work was performed in a workmanlike manner, met all required standards, and was not deficient.

Consequently, the court granted partial summary judgment in favour of AWD, dismissing Varcon's claims related to deficiencies, failure to warn, and failure to rectify.

However, the court determined that genuine issues requiring a trial existed regarding AWD's liability under the warranty provisions of the subcontract, even in the absence of deficient workmanship.

A trial was ordered to resolve these warranty issues and, if liability was established, to assess damages on a quantum meruit basis.

Homeowners retained a septic system installer to install a system in 2010, which was approved by the health unit.

Problems with smell and effluent began in 2011 and persisted through 2013.

The installer repeatedly assured the homeowners he could fix the problem and made several attempts to do so.

In 2015, the health unit condemned the system and issued a compliance order.

The homeowners sued in August 2015.

The trial judge dismissed the action as statute-barred under the Limitations Act, 2002, finding the claim was discovered by spring 2013.

The Divisional Court upheld this decision.

The Court of Appeal reversed, finding the trial judge failed to properly analyze section 5(1)(a)(iv) of the Limitations Act regarding when a proceeding would be an appropriate remedy.

The court held that the homeowners reasonably relied on the installer's superior knowledge and expertise, and a proceeding was not appropriate until the installer's remedial efforts ceased in winter 2014.

The action was therefore within the two-year limitation period.

The appellant, a former Director of Education, appealed a decision of the Ontario College of Teachers Discipline Committee finding him guilty of professional misconduct for plagiarism and revoking his certificate.

The appellant argued he was denied procedural fairness when the Committee refused his request for a medical adjournment and proceeded in his absence.

The Divisional Court allowed the appeal, finding that the Committee failed to consider the totality of the medical evidence regarding the appellant's major depressive disorder and unfairly relied on undisclosed internet search results about his employment.

The matter was remitted for a new hearing.

Following the dismissal of the plaintiffs' appeal and the defendant Van Dusen's cross-appeal, the successful defendants sought their costs.

Van Dusen sought costs on a partial and substantial indemnity basis, relying on an offer to settle, while the Health Unit sought partial indemnity costs.

The court awarded Van Dusen $5,125.00, reflecting partial indemnity costs up to the date of his offer and substantial indemnity costs thereafter.

The Health Unit was awarded $4,237.52 on a partial indemnity basis, with the court reducing both defendants' claimed amounts to reflect a fair and reasonable award.

The appellants appealed a Deputy Judge's decision dismissing their claim for damages arising from a failed septic system as statute-barred under the Limitations Act, 2002.

They argued the Deputy Judge erred by not making an explicit finding under s. 5(1)(a)(iv) regarding whether a proceeding was an appropriate remedy.

The Divisional Court dismissed the appeal, holding that once the Deputy Judge determined the objective discoverability date under s. 5(1)(b), no explicit finding under s. 5(1)(a)(iv) was required.

The respondent's cross-appeal for leave to appeal the costs award was also dismissed.

The applicants successfully defended a Small Claims Court action regarding a real estate misrepresentation but were awarded no costs by the Deputy Judge, who provided no reasons for the costs decision.

The applicants sought leave to appeal the costs order to the Divisional Court.

The Divisional Court dismissed the motion for leave to appeal, finding that although the absence of reasons was unhelpful, the record demonstrated a sound basis for the Deputy Judge's exercise of discretion, as the applicants had committed a misrepresentation even though the plaintiff failed to prove reliance.