A. Conte

The defendants brought a motion to have a 2015 action tried together with two earlier actions (the Loan Actions) which had already been ordered to be tried together.

The court dismissed the motion, finding that the 2015 action did not arise out of the same transaction or occurrence as the Loan Actions, and there were no common questions of fact or law.

Furthermore, the court noted the defendants' unexplained delay in bringing the motion, which would have unnecessarily delayed the trial of the 2015 action currently scheduled to proceed.

Two unpaid construction lien claimants sought priority over a first mortgagee holding a $6.5 million vendor take-back (VTB) mortgage on a contaminated commercial property.

The court had to determine the actual value of the property on the date the first lien arose and whether the VTB constituted an 'advance' under section 78(3) of the Construction Lien Act.

The court found that the actual value of the property was at least $6.5 million, relying on arm's length offers rather than the lien claimants' expert opinion, and held that a VTB mortgage is an advance equivalent to an institutional mortgage.

Consequently, the mortgagee's interest took priority over the lien claimants.

The applicant vendor sought specific performance of an option to buy back a property after the respondent purchaser failed to construct a building within the agreed timeframe.

The applicant also sought to discharge second and third mortgages placed on the property by the respondent.

The court dismissed the application, finding that the applicant failed to strictly comply with the option's notice terms, which included a 'time is of the essence' clause, and failed to tender the purchase funds.

The court also held that the presence of the subsequent mortgages did not prevent the applicant from exercising the option.

The plaintiff brought a motion to set aside an order dismissing its construction lien action for failure to set the action down for trial within the time required under the Construction Lien Act.

The delay resulted from failures by the plaintiff’s in‑house counsel, who had misinformed the plaintiff about the status of the case.

The defendant opposed restoration of the action, arguing prejudice due to the death of a key witness and lack of merit in the plaintiff’s claim.

The court held that dismissal orders may be set aside where a fair trial remains possible and no substantial prejudice arises from delay.

Finding that the dispute would primarily turn on expert evidence and that documentary records could substitute for the deceased witness’s testimony, the court concluded that the defendant would not suffer irreparable prejudice and restored the action.