Articles 2025

Please find below our summaries of the civil decisions of the Court of Appeal of Ontario for the week of October 14, 2024.

An 849-paragraph testament to the grinding weight of our civil justice system, the decision in Walsh Construction v. Toronto Transit Commission et al., 2024 ONSC 2782, was arrived at after a trial stretching over 19 months. In spite of the achievement that the decision represents, its findings on flow-through claims of subcontractors represent a potentially troubling precedent for the industry, and are puzzling as a matter of law. They bear further scrutiny on the appeal currently underway.

Time is of the essence when it comes to the role of a delay expert in a construction dispute. With cases increasingly involving vast amounts of data, AI has become a formidable tool for delay experts. However, AI tools are not without their limitations. Human oversight is still crucial to ensure both reasonableness and accuracy in legal proceedings.

The Ontario Superior Court of Justice recently provided insight into what steps an owner must take to establish a defence of due diligence and avoid liability under the Ontario Occupation Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”).

This is the first article in the 2024-2025 Newsletter’s Reflections series, featuring reflections on extraordinary careers by senior counsel in the construction bar. We are grateful to Duncan Glaholt for inaugurating this series.

Practitioners must remain attentive to their disclosure obligations. Any settlement agreement (or partial settlement agreement) reached between some parties, but not others, that entirely changes the landscape of the litigation in a way that significantly alters the dynamics of the litigation must be disclosed to the non-settling parties. The obligation to disclose is immediate and unequivocal.

The key takeaways from the Westport decision are that sureties will be entitled to assert priority against a wide range of funds, including those awarded in construction adjudications, as long as their indemnity agreements are drafted broadly. While ensuring the flow of funds through adjudication is important, a competing and equally important consideration is not disturbing the construction bonding regime.

An update from the Bench regarding requests to defer Estate Administration Tax and the required evidence to support such a request.

At the recent OBA’s CPD Essential Updates on Court Processes for Estate Litigators, new rule 6.1.01 of the Rules of Civil Procedure was reviewed, together with relevant case law and the potential application of bifurcation to estate matters.

Further update regarding the use of Calendly on the Estates List and in other courthouses including availability and appointment scheduling.