Antonio Conte

A general contractor moved to discharge a supplier’s construction lien, cancel or reduce the security posted to vacate the lien, and discharge a subcontractor’s separate lien.

The court held that the supplier’s lien was properly perfected despite the contractor not being named as a defendant, because the Construction Lien Act does not require joinder of a contractor lacking contractual privity with the lien claimant.

The court also refused to reduce the lien bond posted under s.44, finding the owner’s holdback liability exceeded the lien amount and therefore the full security remained appropriate.

The subcontractor consented to discharge of its lien if the bond was not reduced.

The court discharged the subcontractor’s lien but otherwise dismissed the motion.

Following a prior endorsement concerning priority disputes under the Construction Lien Act, the court clarified issues arising during preparation of the formal order.

The court held that holdback deficiencies relating to certain claimants with untimely or invalid liens could not be included in calculating amounts payable to successful lien claimants, relying on authority confirming that amounts relating to invalid liens cannot expand statutory priority.

The court also rejected attempts to pool funds posted to bond off unsuccessful liens in order to increase the priority recovery of successful contractors beyond the statutory 10 percent holdback.

Costs issues from a reference before the Master were reconsidered, with the court setting aside the Master’s costs order and directing that each side bear its own costs of the reference while recognizing shared “carriage costs” among successful lien claimants.

Additional clarification was provided regarding allocation of motion costs and the structure of the distribution chart for priority payments.

Following the granting of summary judgment dismissing the plaintiff’s action against both defendants, the court determined the appropriate costs award.

The defendants sought substantial indemnity costs relying on Rule 49 settlement offers and the complexity of the litigation.

The court reviewed the governing principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including proportionality, the result obtained, the conduct of the parties, and the offers to settle.

Although the defendants had made settlement offers and were fully successful, the court found no reprehensible conduct by the plaintiff warranting substantial indemnity costs.

Exercising its discretion, the court fixed costs payable by the plaintiff at $30,000 to one defendant and $18,000 to the other.

The defendants and an added party sought leave to appeal to the Divisional Court from an order permitting the plaintiff to add additional defendants to an action despite the expiry of the limitation period.

The moving parties argued the order conflicted with other jurisprudence and raised issues of general importance concerning the effect of limitation periods on motions to add parties.

The court held that the decision under appeal properly followed binding Divisional Court authority holding that the relevant date for limitation purposes is the service of the motion to add a party, not the date the motion is argued.

Finding no conflicting authority, no reason to doubt the correctness of the order, and no issue of general importance, the court refused leave to appeal.

The moving party, a mortgagee, opposed the confirmation of a Master's report regarding a reference under the Construction Lien Act.

The Master had found that the mortgagee, by posting security under s. 44 to vacate liens, lost its priority over the liens and was liable for the full amount of the lien claims rather than just the holdback deficiencies.

The Superior Court of Justice found that the Master committed several palpable and overriding errors of law by failing to follow binding precedent, including decisions of the Divisional Court.

The court held that a mortgagee can post security under s. 44 without losing its priority under s. 78(2), that the mortgagees did not become statutory owners at the relevant time, and that the holdback deficiencies must be calculated based on the individual contracts of the lien claimants.

The Master's report was ordered to be revised accordingly.

The plaintiff brought a motion under rule 26.01 of the Rules of Civil Procedure to add a former employee and a corporation as defendants after the expiry of the two‑year limitation period.

The motion to add one proposed defendant had been served within the limitation period but was adjourned and not argued until after the limitation period expired.

The court held that a motion to add a party need only be served within the limitation period; it need not also be argued and determined before the limitation period expires.

With respect to the corporate defendant, the issue of discoverability was a question of fact and the plaintiff was permitted to add the corporation with leave for the defendants to plead the Limitations Act.

The motion to add both parties was granted subject to procedural timelines.

In a reference under the Construction Lien Act, multiple contractors sought to enforce their claims for lien against the owner and mortgagees of a townhouse development.

The owner had defaulted, and a subsequent mortgagee posted security under s. 44(1) to vacate the liens and facilitate the sale of the remaining units.

The court determined the timeliness and quantum of the various lien claims.

The court held that because the mortgagee chose to post security under s. 44(1) rather than s. 78(10), the liens ceased to attach to the premises and instead became a charge on the posted security in full, rather than being limited to the holdback deficiency.

Alternatively, the court found the mortgagee had acted as an 'owner' under the Act by taking over the completion and sale of the project.

The defendant moved for security for costs under Rule 56.01(1)(a) and (e) of the Rules of Civil Procedure on the basis that the plaintiffs were non-residents of Ontario and allegedly lacked assets in the jurisdiction.

The court found the claim—alleging an improvident sale of property at auction for substantially less than a prior offer and appraised value—was not frivolous or vexatious.

Although the plaintiffs asserted that assets in Texas owned through a corporation were sufficient to satisfy any costs award, the court concluded that enforcement against those assets would not be straightforward because the property was owned by a non-resident corporation rather than the plaintiffs directly.

The court therefore ordered security for costs with conditions designed to preserve the corporate shares and underlying property as potential security for any future costs award.

The plaintiff consulting company sued for unpaid contingency fees under a contract to prepare and submit claims for research and development tax credits.

After an initial meeting with a CRA reviewer, the defendant company lost confidence in the plaintiff and proceeded directly with CRA without the plaintiff’s involvement, eventually receiving reduced tax credits.

The court held that the contract required the defendant to allow the plaintiff to represent it in audits and to remain involved in the claim process.

By excluding the plaintiff and continuing the claim process independently while still benefiting from the credits, the defendant breached the contract.

The plaintiff was therefore entitled to the agreed percentage fee calculated from the credits ultimately received.