Legal Blog:

SNF’s COVID-19 Response

COVID-19 has brought much uncertainty to our workplace office but looking back on the past seven months, our response to this pandemic has been remarkable to say the least! Read this article to see what we did and how.

Contract Termination – Significant Deficiencies

Mastracci v. 1882877 Ontario Inc. 2019 Ont SCJ

While roofing work was ongoing, leaks became apparent. The owner retained an expert whose report savaged the contractor’s work. Rather than allow the contractor to fix the deficiencies, the owner retained another roofing contractor to apply the appropriate fix. The judge held that the deficient work was a fundamental breach of the contract and therefore the owner did not have to give the contractor a reasonable opportunity to correct the deficiencies. The court allowed the owner to set off its cost to complete the work against any amount otherwise owed to the contractor.

Extra Labour Cost – Excessive Lien

McLarty v. 2210961 Ontario Limited 2020 Ont SCJ

A contractor charged extra labour based on a “shop rate” of $60 an hour (a rate that it applied to all customers) rather than the actual rate plus burden. The judge held that the rate was standard in the industry and that, because the contractor included in his quote, an estimate for labour at the same rate, he had a right to that rate. The court analogized the claim to an auto repair shop charging the same rate to every customer, regardless of the wage cost of the individual actually performing the work. Using the same logic, the court held that the plaintiff was not allowed to claim an enhanced rate for overtime work. The amount awarded was $124,000 but the lien claim was $203,000. The judge concluded that the lien claim was exaggerated. However, because the defendant filed no evidence to prove it suffered damages, the judge gave nothing as compensation.

Costs – Modest Judgment

Brophy v. Harrison 2019 Ont SCJ

The plaintiff, in a personal injury matter, received a net award of $17,000. The defendant claimed that the costs should be based on Small Claims Court costs and that the amount being claimed had to be proportionate to the amount at stake. The judge held that the costs would be regular costs; the plaintiff’s case had merit and her decision to continue to trial was reasonable in the absence of any offers from the defendant. The court also held that declining to make realistic costs awards in modest cases would send a message to litigants that is not worth one’s while to pursue legitimate claims in court because one cannot possibly make it cost-effective to do so. Finally, the defendant could not complain about the quantum because it chose not to submit its own costs outline. The judge awarded $210,000 in costs plus disbursements of $65,000.

Privacy

Yenovkian v. Gulian 2019 Ont SCJ

Matrimonial matter in which one of the issues related to the right to privacy. Father, who was represented throughout but not at trial, was a nasty piece of work. He engaged in a continuing process of online bullying, attacks on the administration of justice, and false reports to childcare services and police. The court recognized the final tort in the American four-tort catalogue: publicity that places a plaintiff in a false light in the public eye. The other 3 torts had been previously recognized in Ontario. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. Although facts being adduced for this cause of action will often be sufficient to prove defamation, defamation is not required. The judge ordered damages of $100,000 in this category.

Evidence

Litigants sometimes forget that facts must be proven by evidence and that, more importantly, the introduction of evidence is subject to rules, both under the common law and pursuant to the Evidence Act of Ontario. This is not a new problem (see June 2008 newsletter). Litigants also sometimes forget that (i) a summary judgment motion is merely another means, rather than a formal trial, by which a decision is to be made, based on the facts and the law; and (ii) facts are still subject to the rules of evidence. It seems that the bank’s lawyer in Toronto-Dominion Bank v. PMJ Holdings Limited, a 2019 Ontario Superior Court of Justice decision, did not fully consider the rules of evidence and, at the same time, ran up against a rather formalistic judge. It did not lead to a good result for the bank.

Stall

On occasion we read of, and sometimes experience, a litigant (usually the defendant) or its lawyer or both doing everything in their power to either stall the litigation or to increase the other party’s costs. When we read a decision in which the malefactors get a well-deserved comeuppance, we experience a wave of satisfaction. One such decision is set out in Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors) 2020 ONCA 310. Ritchie Linton was counsel for the aggrieved plaintiff.