Disclaimer of Liability: The Speigel Nichols Fox LLP Blog is intended to provide helpful general information; however, it is not legal advice. You must consult a lawyer if you have a specific legal question or issue that requires an answer.
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No, we are not talking about the surface of a man’s head; rather, we are talking about “bald allegations” of fact in affidavits and whether they are effective to achieve their purpose. We have often stated that lawsuits should really be called factsuits because, in most cases, the real fight is not about the law; the real fight is about the facts to which the law is applied. This differentiation was front and centre in Airex Inc. v. Ben Air System Inc., a 2017 decision of the Ontario Court of Appeal.
This was a run-of-the-mill $217,000 summary judgment motion that a subsub brought against a sub and its two directors arising out of monies due on contract and breach of trust.
The Court gave a short summary of the trust provisions in the Construction Lien Act:
“Section 8 of the Act provides that monies received on account of a contract for an improvement constitute a trust fund for the benefit of subsubcontractors and other persons who supply services or material for the improvement (collectively “subsubcontractors”) and prohibits use of any such funds for a purpose inconsistent with the trust until all such persons have been paid in full.Continue Reading >
Some contractors will not learn. If you want to encumber the land on which you worked, then register a construction lien, perfect that lien by commencing your action, and set your action down for trial, in each case on a timely basis. The contractor in Ciccocioppo Design/Build Inc. v. Gruppuso, a 2017 decision of the Ontario Superior Court of Justice, seemingly did not learn.
The contractor had a role in the design and construction of his friend’s house. He then alleged that he was not fully paid, but did not register a claim for lien. He commenced an action seeking an interest in the house by way of a constructive trust on the basis of unjust enrichment.Continue Reading >
Goldentuler Estate v. Crosbie 2017 Ont CA
A defendant paralegal surreptitiously removed 120 files from the offices of a lawyer and transferred them to another lawyer. The trial judge found that the defendants were liable for damages arising from breaches of duty of loyalty and good faith, the failure to avoid conflicts of interest, and self-interest during the course of their employment. The trial judge did not award punitive damages. The Court of Appeal awarded punitive damages in the amount of $80,000 because of the pre-litigation conduct of the defendants, which they found to be outrageous and high-handed. Compensatory damages were not sufficient to achieve the goals of deterrence and denunciation.Continue Reading >
HMI Construction Inc. v. Index Energy Mills Road Corp. 2017 Ont Div Ct
The decision by a judge to reduce security posted to discharge a claim for lien is a final order and therefore can be appealed to the Divisional Court. In determining the actual value of work done for purposes of a lien, value is measured by the contract. Quantum meruit does not come into play unless there is an incremental progress between progress billings or milestones. A motions judge is entitled to reduce lien security if the evidence supporting the calculation of the claim for lien fails to establish a reasonable basis for the amount claimed. In this case, the lien security was reduced from $32 million to $16 million.Continue Reading >
A Norwich order is a form of equitable relief that, if granted, requires a 3rd party to a potential action to disclose information that is otherwise confidential. The governing factors follow: has the applicant raised a valid, bona fide or reasonable claim; was the 3rd party, from whom the information is sought, involved in the acts complained of; is the 3rd party the only practicable source for the information; can the 3rd party be indemnified for costs to which it may be exposed because of the disclosure; and do the interests of justice favour the disclosure? In this case, the court ordered Yahoo to disclose the identity of a person sending defamatory emails.Continue Reading >
Hammond v. Peabody 2017 Ont SCJ
Motions can be brought to set the ground rules for a motion for summary judgment. These motions can be used to obtain documents and set timetables for cross-examinations. However, the fact that there will be credibility issues and vastly divergent points of view are not reasons, in themselves, to deprive the moving party of its right to bring a summary judgment motion. That would be pre-judging the motion without knowing whether there will actually be credibility issues and divergent points of view. Similarly, the preliminary motion judge cannot make an order dealing with whether oral evidence will ultimately be given on any particular point; that is a decision for the summary judgment motion judge to make.Continue Reading >
Gerger Mechanical Ltd. v. Salvarinas 2012 Ont SCJ
On a motion, usually made without notice, for a certificate of pending litigation (CPL) arising out of an alleged fraudulent conveyance, the plaintiff need only demonstrate that it has put forward a reasonable claim to set aside a transfer based on fraud and that it already has a judgment against the transferor or would successfully recover judgment if there was just an action outstanding. The plaintiff does not have to demonstrate that the transfer was made with an intent to defeat or delay creditors or that the balance of convenience favours issuing a CPL. That may be the case on a motion to set aside a CPL, but not the original motion to obtain a CPL.Continue Reading >