Construction Law

The moving party, 2B Developments, sought an order staying the trial judge's final order which dismissed its action, discharged its construction lien, and awarded damages to the respondent.

Applying the RJR-MacDonald test, the Divisional Court found that the appeal raised serious issues to be tried, including procedural fairness and the trial judge's finding of fraud.

The court held that 2B would suffer irreparable harm if the stay were refused because the discharge of a construction lien is irrevocable, resulting in the permanent loss of a statutory right.

Finding the balance of convenience favoured 2B, the court granted the motion to stay the discharge of the lien pending appeal.

The moving parties brought a motion for leave to bring an application for judicial review of an adjudicator's decision dated February 28, 2024.

The Divisional Court dismissed the motion and awarded costs to the responding party fixed at $5,000 all-inclusive.

The appellant construction manager appealed a motion judge's order reducing the amount of security posted by the respondent developer to vacate a construction lien.

The motion judge had reduced the security by the amount the developer paid directly to the appellant's subcontractors, finding these were valid payments under section 28 of the Construction Act.

The Divisional Court allowed the appeal, holding that the motion judge erred in law by interpreting section 28 to include payments to subcontractors who did not fall within the statutory definition of a 'person having a lien'.

The motion judge's order was set aside.

The appellants sought to appeal a decision declining to award costs against a law firm under s. 86(1)(b)(i) of the Construction Act.

The Divisional Court held that leave to appeal was required under s. 133(b) of the Courts of Justice Act because the appeal was solely regarding discretionary costs, and the costs order did not constitute a 'judgment' under s. 71 of the Construction Act.

Finding that the test for leave was not met, the court denied leave and dismissed the appeal.

The applicant sought judicial review of an adjudicator's prompt payment determination under the Construction Act.

The Divisional Court adjourned the application because the applicant failed to serve notice on the Attorney General as required by s. 9(4) of the Judicial Review Procedure Act.

The court also directed the applicant to serve notice on the Ontario Dispute Adjudication for Construction Contracts (ODACC) due to issues concerning jurisdiction, process, and the public release of adjudication decisions.

The moving party brought a motion for leave to appeal the decision of R. Smith J. dated June 26, 2024.

The Divisional Court dismissed the motion for leave to appeal without costs.

The appellant supplier claimed it was owed $600,000 for building materials and sought a declaration that the proceeds of the sale of a model home were held in trust under the Construction Act.

The motion judge ordered only a portion of the sale proceeds to be held in court under Rule 45.02, finding a serious issue to be tried only for the materials supplied to that specific home.

The appellant appealed, arguing the order was final.

The Divisional Court quashed the appeal, holding that the order was interlocutory because it did not finally determine the substantive rights of the parties regarding the scope of the trust.

The appellant appealed an order reducing the amount of security the respondent was required to pay into court to vacate a construction lien.

The appellant argued the motion judge erred in law by providing deficient reasons that prevented meaningful appellate review.

The Divisional Court agreed, finding the motion judge's five-paragraph endorsement lacked sufficient explanation for reducing the security and failed to address the conflicting evidence regarding the contract price.

The appeal was allowed, the order was set aside, and the matter was remitted for redetermination by a different judge.

The appellant contractor appealed a trial decision awarding prejudgment interest at the Courts of Justice Act rate rather than the higher contractual rate.

The respondent homeowners cross-appealed the trial judge's award of damages for two change orders and the refusal to award damages for deficiencies covered by a Licence Appeal Tribunal (LAT) settlement.

The Divisional Court dismissed both the appeal and cross-appeal.

The court found the trial judge did not err in the interest award because the contractor had withdrawn its claim for the contractual rate at trial.

The court also upheld the trial judge's findings that the change orders were payable as extras and that the LAT had jurisdiction to enforce the settlement regarding deficiencies.

The applicant subcontractor sought judicial review of an adjudicator's determination under the Construction Act dismissing its claim for unpaid invoices.

The adjudicator had dismissed the claim on the basis that the contractor's invoices to the owner were not 'proper invoices', an issue neither party had raised or made submissions on.

The Divisional Court held that deciding the case on an unraised issue without allowing submissions was a breach of procedural fairness.

The application was allowed and the matter remitted to the adjudicator.

The applicant builder sought judicial review of a decision by Tarion Warranty Corporation ordering it to pay $7,500 in delayed occupancy compensation to a purchaser.

The builder argued that the delay was unavoidable due to a fire and the COVID-19 pandemic, and that it had provided proper notice to the purchaser.

The Divisional Court dismissed the application, finding that Tarion's decision was reasonable because the builder's notice failed to specify an end date for the unavoidable delay or provide a brief description of it, and the builder failed to provide sufficient evidence that the entire delay was caused by the fire and pandemic.

The appellant homeowner appealed a Small Claims Court decision ordering her to pay the respondent contractor $20,046 for home renovations.

The appellant argued the trial judge erred in fact-finding, contract interpretation, applying the Consumer Protection Act, and violated natural justice.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's conclusion that the parties had reached an oral agreement on the amount owing.

The court also upheld the finding that the appellant could not rely on the Consumer Protection Act to void the contract, as she had specifically requested an oral agreement to avoid paying HST.

Claims of bias and inadequate reasons were also dismissed.

The moving party brought a motion for leave to apply for judicial review of an adjudicator's interim and final decisions.

The Divisional Court granted leave to apply for judicial review and ordered that the adjudicator's decisions be stayed pending the final determination of the application.

The moving party, a lumber supplier, sought an extension of time to commence an appeal to the Divisional Court from an order regarding the preservation of funds under Rule 45.02 and the Construction Lien Act.

The moving party had initially appealed to the Court of Appeal, which quashed the appeal for lack of jurisdiction.

The Divisional Court granted the extension of time, finding that the moving party had a bona fide intention to appeal, provided a reasonable explanation for the delay, caused no prejudice to the respondents, and raised arguable questions of law on the merits.

The appellant contractor appealed a decision dismissing its construction lien action against the respondent homeowners.

The appellant had performed emergency plumbing and remediation work, billed an excessive amount, left the work unfinished, and used a fake law firm to threaten the homeowners.

The Associate Justice dismissed the lien, contract, and quantum meruit claims because the appellant was not the contracting party, and dismissed the unjust enrichment claim as vexatious and an abuse of process.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Associate Justice's conclusion that allowing the appellant to misuse the legal process in furtherance of a deceptive scheme would bring the administration of justice into disrepute.

The appellant appealed a motion judge's decision that there was no limitation period on the respondent's right to enforce a 1999 construction lien judgment due to the transitional provisions of the Limitations Act, 2002.

The respondent cross-appealed on issues including the vacating of the lien, characterization of set-off claims, and costs.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the transitional provisions because the relevant 'proceeding' was the enforcement action, not the original suit.

The cross-appeal was allowed only to correct the formal order, removing findings of fact improperly included as orders.

The appellant owner appealed a summary judgment finding it liable to pay a subcontractor directly for amounts owed by the contractor, pursuant to a termination agreement.

The Divisional Court dismissed the appeal on the merits, finding the motion judge made no palpable and overriding error in concluding the owner agreed to pay the subcontractor's outstanding balance.

However, the court set aside the motion judge's award of 24% interest, finding the issue was not properly addressed, and directed the parties to provide further written submissions on the proper calculation of interest.

The appellant sought leave to bring an application for judicial review of an adjudicator's interim determination under the Construction Act, which ordered him to pay the respondent contractor $119,314.

The appellant argued the adjudicator lacked jurisdiction because the contract had been abandoned and thus 'ceased to exist', and because a lien had already been registered and bonded off.

The Divisional Court dismissed the motion, holding that jurisdictional challenges must be raised before the adjudicator first, an abandoned contract does not cease to exist, and the Act expressly permits concurrent adjudication and lien proceedings.

The parties brought a statutory appeal and cross-appeal from an arbitrator's award under the Ontario New Home Warranties Plan Act.

The Divisional Court directed the parties to address whether leave to appeal was required as a preliminary issue.

The court held that while it had jurisdiction to hear the appeal, the Arbitration Act applied because the Tarion Addendum constituted an arbitration agreement that did not specify appeal rights.

Consequently, leave to appeal was required and the appeal was strictly limited to questions of law.

The appellant appealed a Master's decisions interpreting Minutes of Settlement in a construction lien action regarding roof repairs.

The Divisional Court held it lacked jurisdiction to hear the appeal under section 71(1) of the Construction Lien Act because the Master's report had not yet been confirmed.

In the alternative, reviewing the merits, the court found the Master correctly interpreted the settlement agreement's definition of 'Work' and made no palpable and overriding errors of fact.

The appeal was dismissed.