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Legal Blog:
Sep
11
2019
Prompt Payment & Adjudication
The construction industry is about to experience a tectonic shift. On October 1, 2019, the prompt payment and adjudication sections of the newly named Construction Act will take effect. Regardless of what role you play in the industry, you must understand the new regime and have the appropriate systems and procedures in place to comply with it. The following sets out answers to 10 commonly-asked questions.
1. To whom does the new prompt payment and adjudication regime apply? It applies to private and public sector construction projects of all types and sizes located in Ontario and to every party in the construction pyramid (i.e. owner, developer, general contractor, subcontractor, lender, consultant, etc.). Said otherwise, it applies to almost everyone involved in the Ontario construction industry.
Continue Reading >Sep
05
2019
Motion to Strike
Hengeveld v. The Personal Insurance Company 2019 Ont CA
Personal injury plaintiffs learning that evidence that could assist them in proving their case had been destroyed commenced a third party action against their insurer who had had initial custody of that evidence. The insurer brought third party proceedings for contribution and indemnity against the plaintiffs’ lawyers; at the same time, in its defence to the plaintiffs’ action, the insurer asserted that the plaintiffs were contributorily negligent (through the lawyers’ agency) and therefore responsible for all or part of their own claimed damages. The lawyers brought a motion under Rule 21.01(2)(b) to dismiss the third party action as disclosing no cause of action. The court granted the motion because the same negligence being alleged in the third party action had been raised in the statement of defence to attempt to reduce the plaintiff’s damages. In effect, the insurer could not double dip with the same claims of negligence.
Continue Reading >Sep
05
2019
Motion to Strike
Potis Holdings Ltd. v. The Law Society of Upper Canada 2019 Ont CA
LSUC brought a motion under Rule 21.01(2)(b) to strike the statement of claim for disclosing no reasonable cause of action. The court noted that a defendant should ordinarily move to strike a claim before filing a statement of defence, but a defendant could bring such a motion without leave even after delivering a defence if it was obvious from the statement of defence that the defendant took issue with the sufficiency of the plaintiff’s claim. Because LSUC’s defence pleaded the very deficiencies relied on in the motion to strike, the court held that leave was not necessary. It also indicated that the motion judge would have, and should have, granted leave if requested.
Continue Reading >Sep
05
2019
Summary Judgment Motion Costs
Hurst v. Hancock 2019 Ont CA
The plaintiff attempted to obtain summary judgment and was unsuccessful. The court ordered that costs of the summary judgment motion be payable in the cause of the action.
Continue Reading >Sep
05
2019
Deemed Undertaking Rule
Traders General Insurance Company v. Elizabeth Gibson 2019 Ont SCJ
Insurer applied for a declaration that it was not required to indemnify the insured, who was a defendant in another action. The insurer sought leave under deemed undertaking Rule 30.1.01 to use the transcripts of the examination for discovery of the parties in the main action as the basis for its evidence in this application. The application judge granted that leave, noting that if discovery material in one action is to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the use is virtually non-existent and leave will generally be given. The judge noted that the same factual matrix was involved in the action and the application and granted leave.
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