Construction Law

The plaintiff subcontractor brought an unopposed motion for leave to amend its statement of claim to add a corporate party and its principal as defendants, and to add allegations of breach of statutory trust under the Construction Act.

The court expressed concerns that the proposed amendments failed to plead a contractual relationship with the proposed defendants, which is required for a contractor's trust claim.

The court also noted that O. Reg. 302/18, section 3(2) likely prohibits the joinder of trust claims with lien claims.

Following these comments, the plaintiff withdrew the motion.

The plaintiff contractor brought a motion to extend the time for service of its statement of claim in a construction lien action.

The defendant tenant brought a cross-motion to declare the lien expired.

The plaintiff had delayed service because the tenant acknowledged the debt and requested an indulgence to secure financing during the COVID-19 pandemic.

The court found the plaintiff's explanation compelling and noted the tenant's conduct rose to the level of issue estoppel.

The court granted the extension, dismissed the cross-motion as moot, and declined to award costs to the tenant.

The defendant general contractor brought a motion to reduce the amount of security posted to vacate a construction lien registered by the plaintiff subcontractor, and for an order requiring the plaintiff to post security for costs.

The court found that the plaintiff's claim for extra work was clearly inflated and lacked sufficient evidentiary support, and that the plaintiff failed to comply with contractual notice provisions.

The court reduced the lien amount to $797,636.23 and ordered the plaintiff to post $120,000 as security for costs, finding good reason to believe the plaintiff lacked sufficient assets in Ontario to pay a costs award.

The plaintiff sued the defendants for breach of contract, claiming a management fee for supervising a construction project at the defendants' home.

The defendants moved for an order requiring the plaintiff to serve a further and better affidavit of documents, seeking timesheets, invoices, and communications related to the project and other properties.

The court granted the motion, finding the requested documents relevant to determining the actual project cost, the adequacy of the plaintiff's management, and the quantum meruit claim.

The court also held that ordering disclosure was proportionate to the issues and amount involved.

Following a 19-day construction lien trial, a procedural dispute arose regarding closing submissions.

The defendant filed a surrebuttal that raised a new defence under the Limitations Act, 2002, and implicitly alleged professional negligence against the plaintiff's counsel.

The plaintiff requested a right of reply.

The court granted the plaintiff a limited right of reply, finding that trial fairness dictated the plaintiff must have an opportunity to respond to a newly raised, unpleaded limitations defence.

The plaintiff set the action down for trial and counsel attended trial scheduling court to fix a date.

The judge convened a case conference and determined that the action, commenced in 2014 regarding a construction dispute, was not ready for trial.

Interlocutory steps including undertakings, potential refusal motions, and expert reports were incomplete, and a companion action had sat dormant.

The judge struck the action from the trial list, directing counsel to return only when the matter is truly ready for trial.

The defendant subcontractor moved to declare the plaintiff's construction lien expired and to discharge the lien.

At the time the plaintiff preserved and perfected its lien, the plaintiff corporation had been dissolved for failure to pay a fee, though it was later revived.

The court held that because the corporation was dissolved at the relevant time, it was not a legal entity entitled to preserve or perfect a lien.

The court found it had no equitable discretion to validate the lien retroactively, and even if it did, it would not exercise it in these circumstances.

The motion was granted, the lien discharged, and the security ordered returned.

The plaintiff hired the defendant to construct a pole barn.

The defendant abandoned the project before completion, citing delays and health issues, leaving the barn unfinished and exposed to the elements.

The defendant failed to appear at trial.

The court found the defendant liable for breach of contract and awarded the plaintiff $71,288.13 in damages, representing the overpayment for work performed and the estimated cost to complete the barn to the contract's specifications, plus $10,500 in costs.

The garnishee brought a motion to reinstate its appeal of an associate judge's order, which had been struck by the registrar for failure to file a motion confirmation form.

The creditor brought a cross-motion to strike the garnishee's affidavit and for judgment.

The court found that the Rules of Civil Procedure do not clearly require a motion confirmation form for an appeal of an interlocutory order of an associate judge, and the creditor should have consented to the reinstatement.

The court granted the motion to reinstate the appeal and dismissed the creditor's motion.

The plaintiff contractor sued the defendant homeowners for unpaid amounts and extras on a home renovation project.

The defendants counterclaimed for overpayment and deficiencies, arguing the contract was for a lower 'turn-key' price.

The court found the contract price was $183,500 plus HST, and the defendants breached the contract by unreasonably terminating it.

The plaintiff was awarded the balance owing plus proven extras on a quantum meruit basis, less credits for incomplete and deficient work, resulting in a net judgment of $61,940.73 for the plaintiff.

The plaintiff supplier brought an action against the corporate defendant and its principals for unpaid materials supplied to a construction project.

Following default judgment against the corporation, an uncontested trial was held to determine the personal liability of the individual defendants.

The court found that the corporation received funds for the project but failed to pay the plaintiff, constituting a breach of trust under the Construction Act.

The court held the individual defendants jointly and severally liable for the breach of trust, finding they had effective control of the corporation and acquiesced in the breach.

The defendants brought a motion to compel answers to questions refused during the cross-examination of the plaintiff's principal on her affidavit, in advance of a pending security for costs motion.

The court granted leave for the refusals motion, finding it necessary to ensure procedural rights.

The court ordered the plaintiff to answer questions regarding its cessation of operations and the principal's relationship with a former employee, as these matters were raised in the affidavit.

However, the court dismissed the requests to compel answers regarding the plaintiff's assets, liabilities, banking records, the defendants' bill of costs, and human rights claims, finding them irrelevant or improper.

The plaintiff, an unpaid supplier of building materials, brought a motion under Rule 45.02 to have the proceeds of sale from one of the contractor's construction sites held in court pending the outcome of its action.

The plaintiff argued that the entire proceeds constituted a trust fund under section 8 of the Construction Act, even though the amount owed for materials supplied to that specific property was much less than the total debt owed across multiple projects.

The court held that the statutory trust under section 8 is project-specific, limiting the plaintiff's trust claim to the value of materials supplied to that particular property.

The motion was granted in part, with only the amount owed for that specific property, plus interest, ordered to be retained in court.

Following a summary judgment mini-trial where the plaintiff was awarded $559,926.18 for breach of trust under the Construction Act, the court determined costs and interest.

The court found the defendants' withholding of trust funds to be unreasonable and unjustified, warranting substantial indemnity costs.

The plaintiff was awarded $131,776.36 in costs and pre-judgment interest at 1.5%.

The plaintiff contractor brought a construction lien action against the defendant homeowners for unpaid amounts and extras on a fixed-price home renovation contract.

The homeowners counterclaimed for construction deficiencies and incomplete work.

The court found that the parties had varied the contract by conduct to allow for extras without written change orders, but the contractor only proved entitlement to a few of the claimed extras.

The court dismissed most of the homeowners' deficiency claims due to unreliable expert evidence, but awarded them several credits for incomplete work and unapproved material substitutions.

Ultimately, the court found the homeowners breached the contract by failing to pay the final installment and granted the contractor judgment and a valid lien for the remaining balance of $8,277.97.

The moving party, Onespace Unlimited Inc., brought a motion to strike portions of a reply affidavit sworn by the responding party's principal witness in advance of a summary trial.

The moving party argued the impugned statements contained improper argument, opinion evidence from a lay witness, and legal conclusions.

The court granted the motion in part, striking statements that constituted improper argument or unqualified expert opinion, while retaining statements that were factual observations or inextricably tied to the witness's overall impressions.

The owners were successful on a motion to vacate a claim for lien registered by the contractor.

The owners sought substantial indemnity costs of $78,000, relying on a prior letter indicating their intent to claim such costs.

The court found no justification for substantial indemnity costs, as the contractor's unsuccessful opposition to the motion did not constitute misconduct.

Applying the factors under Rule 57.01, the court awarded partial indemnity costs fixed at $46,835.03, noting the modest amount of the claim and the lack of legal complexity, while acknowledging the contractor's failure to produce records contributed to factual complexity.

The defendant construction management firm moved under s. 44(5) of the Construction Lien Act to reduce the security it posted to vacate the plaintiff subcontractor's lien.

The parties' contract stipulated that payment was conditional on certification by an authorized engineer.

The engineer certified that the plaintiff had been overpaid, and the plaintiff provided no evidence of bad faith or fraud by the certifier.

The court held that the certifier's decision was binding and reduced the security from over $500,000 to $24,000, accounting only for unpaid holdbacks and HST.

Following a trial where the plaintiff's construction lien claim was dismissed and the defendants succeeded on their counterclaim, the defendants sought costs.

The court awarded full indemnity costs of $578,793.29 to the defendants due to the egregious and deceitful conduct of the plaintiff's principal, who fabricated documents and lied repeatedly.

The court also ordered the costs to be payable jointly and severally by the plaintiff corporation and its principal personally, finding his conduct amounted to an abuse of process.

The plaintiff sued for unpaid costs and a management fee related to a home renovation project.

The Master found a cost-plus contract existed but denied the management fee, awarding the plaintiff $31,556.

The plaintiff brought a motion under Rule 54.09 opposing the confirmation of the Master's report.

The Superior Court found the Master made a palpable and overriding error in concluding a contract existed, as there was no meeting of the minds on essential terms.

The court set aside the Master's report and awarded the plaintiff $106,060.19 on a quantum meruit basis for services rendered.