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Legal Blog:
Sep
12
2017
Remedy
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 >Sep
01
2017
Punitive Damages
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 >Sep
01
2017
Lien Validity
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 >Sep
01
2017
Injunctions, Mareva and Norwich
Carleton Condominium Corporation No. 282 v. Yahoo! Inc., 2017 Ont SCJ
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 >Sep
01
2017
Summary Judgment Motion
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.
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