Legal Blog:

Judgment Debtor Examination

Hermanns v. Ingle 2020 Ont SCJ

A non-party may be examined in aid of execution of the debtor under Rule 60.18 (6), but an order to do so should not be made unless the judgment creditor has exhausted all means available before asking for an order authorising the examination. There is no time limit to attempt to satisfy a judgment if the judgment creditor has diligently been attempting to collect the judgment.

Lifting Executions

BMO v. Cadogan 2020 Ont SCJ

A lawyer made a statement on the electronic registry of a transfer that the execution filed against the vendor/debtor had been released. Accordingly, the debtor was able to transfer the property to purchasers without an execution binding the transfer. In fact, the execution had not been released and the lawyer was held to have known this. The execution creditor obtained a judgment against the lawyer for the amount of the debt plus punitive costs of $20,000.

Change Order/Directives

EllisDon v. Winnipeg Airports 2018 Man (QB)

General and owner disagreed as to the valuation of various change directives for the project. The contract documents (based on CCDC 18 – like CCDC 2 but for civil works) had conflicting provisions as to what could be included in the valuations and what could not. (i) The trial judge relied on the CCDC clause that listed the contract documents in order of priority if there was a conflict between them. (ii) For change directives, the contract stated that the general had to prove its entitlement to payment of the costs before they could be reimbursed and the judge upheld that requirement. However, in the case where some of the subcontractors either settled with the general or went bankrupt, the judge allowed the costs. The judge held that there was no unjust enrichment because the owner suffered no detriment from what it anticipated when it signed the contract and issued the change directives. (iii) The owner also attacked a number of the change orders. The judge noted that the signing of a change order constituted a change to the lump-sum price and that, in this case, the change orders were signed off by the owner and the consultant. Accordingly, the judge held that it was not open for the owner to attempt to claw back amounts that the general had charged pursuant to quotations that it had submitted.

Fixed Price Contract

1157391 Ontario Inc. v. Ortiz 2020 Ont SCJ

Defendant owner wanted contractor to justify costs on a fixed price contract payable in stages of construction. The judge held this was unnecessary. The defendants had no right to convert a fixed price contract into a labour and material contract by their wishful thinking.

Discovery

Jane Doe 622952 v. Zhang 2020 Ont SCJ

Plaintiff wanted a video discovery. The defendant objected because, he said, the case involved credibility, best assessed in person. The judge did not agree that a purpose of discovery was to assess credibility; its purpose was to discover evidence and obtain admissions. Given the pandemic, he ordered discoveries and mediation by video. This case should not be taken as instructive to a situation in which there is an allegation of tailoring evidence.

Experts

One particular Ontario Superior Court judge (with whom we are more than a little familiar) has been very vocal about the current use of expert witnesses to help bolster litigants’ cases. A plaintiff finds an expert to bolster the plaintiff’s case; the defendant finds an expert to bolster the defendant’s case – and the litigation continues for years. The problem – at least as this judge sees it – is that often the experts are not independent; rather, they are “hired guns” who support the position of the party who retains them.

In many cases that she pre-tries, she has proposed that the parties jointly agree upon one expert, who is truly independent and can give an unbiased opinion. Of course, a party does not have to accept that opinion, but it goes a long way towards settlement if the party knows that an opinion has been independently given. Indeed, it would be even better if the parties jointly engaged an expert before they spent a huge amount of time and money on the litigation. For the litigants, early settlement is better than late settlement; for some lawyers, not so much.

Extras – Cost

A contractor wants compensation for its labour and material costs as an extra. How does it calculate the labour cost? Does it take its actual labour cost and then mark it up for profit and overhead or does it charge some all-in hourly rate that it may (or may not) have used to estimate its labour when pricing the job? This question was answered in McLarty v. 2210961 Ontario Limited, a 2020 decision of the Ontario Superior Court of Justice.