Legal Blog:

Master – Summary Judgment Jurisdiction

R&V Construction Management Inc. v. Baradaran 2020 Ont SCJ (Div Ct)

Although, on a motion for summary judgment in the normal course, Masters do not have the enhanced powers given to judges, they do have jurisdiction to use the enhanced powers in their capacity as referees under the Construction Act. The motion judge was overruled on this issue. However, the court set aside the Master’s dismissal of the action because of a lack of natural justice. The defendant, who was not represented, had brought a motion to discharge the plaintiff’s lien or reduce lien security. Instead, the Master granted summary judgment against him for a motion that neither he nor the plaintiff had brought.

Limitation – Debt Acknowledgement

Michel v. Spirit Financial Inc. 2020 Ont CA

When a limitation period expires, it cannot be revived by an acknowledgement of the debt. The acknowledgement must be made before expiry of the limitation period.

Delay Dismissal

Samuels v. Mai 2020 Ont CA

2011 action for $50,000 under the Simplified Procedure Rules. Nothing happened for four years after pleadings closed; both parties obtain new counsel by 2017. A Master, at a status hearing, extended the time for the action to be set down for trial to June 1, 2018. The plaintiff did nothing. In January 2018 the defendants moved to dismiss the action for delay. Between January and August 2018, the parties delivered affidavits of documents. Ultimately, the motion was adjourned to July 2019 and both parties delivered materials. The motion judge dismissed the plaintiff’s action for delay, but the counterclaim remained. The Court of Appeal set aside the decision because the motion judge failed to consider “a critical contextual factor: the dismissal of the appellant’s claim left the respondents’ counterclaim alive.” The court held that it was not in the interests of justice to dismiss a plaintiff’s claim while permitting the defendants to litigate the same issues in their counterclaim.

Costs – Offer to Settle

Welton v. United Lands Corporation Limited 2020 Ont CA

A plaintiff had been successful at trial, obtaining an award of $182,000 (although she claimed millions). The defendants had submitted an offer in May 2019, four days before the trial of the 2012 action, at $190,000 plus costs. Its previous offer had been submitted in 2012 for $15,000. Although the 2019 offer did not comply with Rule 49, the trial judge used his residual discretion to allow the plaintiff her costs to the date of the 2019 offer at $33,000 and the defendants their costs after the date of the offer of $41,000. The Court of Appeal held that it was unreasonable to make a last-minute settlement offer after the Rule 49 deadline had expired, following a previous offer that could only be described as contemptuous. The court overturned the costs award and allowed the plaintiff $84,000 in costs.

Notice

The concept of notice seems to be continually in issue. Construction contracts, particularly prime contracts with their omnipresent supplementary conditions, have become more and more onerous requiring contractors to give notice of claims. Although the time in which the notice must be given and the degree of detail to be contained in the notice vary from contract to contract, the provisions usually have one thing in common: without the requisite notice, the claim is gone. We first discussed this way back when in 1996 (see July 1996 newsletter) and updated it in our discussion of Technicore Underground Inc. v. City of Toronto (see July 2012 newsletter). Cases come and cases go, but, unfortunately, notice controversies never go away – because contractors are loath to rock the boat and therefore do not give the appropriate notice. One of these controversies was resolved in Newton Mechanical/Electrical Inc. v. NDL Construction Ltd., a 2019 decision of the Manitoba Court of Queen’s Bench.