Construction Law

The applicants sought judicial review of an Ontario Labour Relations Board decision that denied their successor rights application following the merger of two construction companies.

The Board had awarded bargaining rights for formwork to the Carpenters' Union to avoid jurisdictional conflict, as the merged entity intermingled employees.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding the Board's decision to avoid jurisdictional conflict under section 69(6)(c) of the Labour Relations Act was justified, transparent, and intelligible.

The appellant appealed a Small Claims Court decision ordering him to pay the balance owing on a restoration contract.

The appellant argued the trial judge erred in finding a fixed-price contract, assessing deficiencies, and adding the respondent's corporation as a plaintiff at the start of trial.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding the contract and deficiencies.

The court also held that adding the corporate plaintiff was either done on consent or was a permissible correction of a misnomer, as the appellant knew he was dealing with the individual respondent's company and suffered no prejudice.

The appellant property owner entered into a contract with the respondent builder for the construction of a luxury home, paying a $3.8 million non-refundable deposit.

After the appellant failed to pay over $10.4 million in interim invoices, the respondent obtained summary judgment.

The appellant appealed solely on the issue of whether the deposit should be credited against the judgment.

The Divisional Court dismissed the appeal, holding that the deposit was intended to secure completion of the contract and was forfeit due to the appellant's breach, rather than acting as a prepayment for interim invoices.

The appellant hired the respondent for leasehold improvements and failed to pay the final invoice balance.

More than two years after the last payment, the respondent commenced a Small Claims Court action.

The trial judge found that a text message sent by the appellant constituted an acknowledgment of the debt under s. 13 of the Limitations Act, 2002, extending the limitation period.

On appeal, the Divisional Court upheld the decision, finding the text message was a clear acknowledgment and that the unique identifiers of a cellular phone satisfy the signature requirement under s. 13(10) of the Act.

The appellant hired the respondent to demolish two buildings under a fixed-price contract.

During demolition, hidden asbestos was discovered, and the respondent charged for its removal as an 'extra'.

The Small Claims Court trial judge found the appellant had agreed to the extra work and awarded damages based on quantum meruit, discounting the respondent's ballparked figures by 30%.

The Divisional Court dismissed the appeal, holding that the trial judge's factual findings were entitled to deference and his application of quantum meruit was appropriate given the informal mandate of the Small Claims Court.

The appellant architect appealed a finding of professional misconduct by the OAA Discipline Committee.

The Committee found the architect in a conflict of interest under s. 43(1)(f) of the Regulation because he provided millwork drawings for a renovation project while also owning a company that submitted a quote for the work.

The appellant argued the provision only applied to formal tendering processes creating a Contract A/Contract B scenario.

The Divisional Court dismissed the appeal, holding that the Committee correctly interpreted 'tenders or bids' to include informal competitive bidding processes, consistent with the plain meaning of the words and the public interest purpose of the legislation.

The moving party sought an extension of time to serve and file a notice of appeal from a judgment under the Construction Act.

The moving party's former counsel mistakenly believed the appeal period was 30 days under the Rules of Civil Procedure, rather than the 15 days prescribed by the Construction Act.

The court granted the extension, finding that the moving party had a bona fide intention to appeal, the 14-day delay was explained by counsel's inadvertence, there was no prejudice to the responding parties, and the proposed appeal was not devoid of merit.

The appellant registered a claim for lien against the respondents' property.

The motion judge discharged the lien under s. 47 of the Construction Lien Act, finding it was registered out of time because the contract work was completed and fully invoiced 11 months prior.

On appeal, the appellant argued the motion judge erred in relying on the invoice and applying the wrong standard.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's factual conclusions and holding that the correct underlying test was applied.

The appellant appealed a decision refusing to confirm a master's report that granted summary judgment in a construction lien action.

The Divisional Court held that a master acting as a referee under the Construction Lien Act has the jurisdiction to use the enhanced powers of a judge on a summary judgment motion.

However, the appeal was dismissed because the master deprived the self-represented respondent of procedural fairness by treating his motion to discharge the lien under section 47 as a motion for summary judgment without notice.

The matter was remitted back to a master for disposition.

The appellant appealed a motion judge's decision that reduced a Master's awards for an extra invoice, prejudgment interest, and costs in a construction lien dispute.

The motion judge had found that the Master made a palpable and overriding error regarding the date of a supplier's invoice, which tainted the Master's overall negative assessment of the respondents' credibility.

The Divisional Court allowed the appeal, holding that while the Master's factual error was palpable, it was not overriding, as the credibility findings were supported by numerous other significant factors.

The motion judge erred in law by reassessing credibility and substituting his own findings.

The respondents' cross-appeal for a new trial was dismissed.

The appellant contractor appealed a decision declaring its construction lien expired.

The motions judge had found that the respondent owner's notice of termination triggered the 45-day deadline for the appellant to file its claim for lien, equating termination with 'abandonment' under the Construction Lien Act.

The Divisional Court allowed the appeal, holding that abandonment requires the contractor to abandon the contract, and an owner's unilateral termination does not automatically constitute abandonment by the contractor.

The claim for lien was therefore registered in time.

The appellant sought to appeal an order refusing a stay of summary judgment.

The Divisional Court held that under s. 71(3) of the Construction Lien Act, no appeal lies from an interlocutory order.

Citing Court of Appeal precedent, the court confirmed that an order refusing a stay of summary judgment is procedural and therefore interlocutory.

Consequently, the court lacked jurisdiction to hear the matter, and the appeal was dismissed with costs.

The appellant general contractor appealed a trial judgment awarding $142,553.33 to the respondent subcontractor in a construction lien action.

The appellant argued the respondent abandoned the project when faced with a payment dispute.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the respondent had fully performed its obligations and did not abandon the contract, but rather stopped work due to the appellant's material breach in refusing to pay.

The appellant subcontractor appealed a trial judge's decision granting priority to a solicitors' charging order over the subcontractor's trust claim under the Construction Lien Act.

The Divisional Court allowed the appeal, finding that funds payable to the contractor by the owners on account of an assigned lien were trust funds under section 8 of the Act.

The court held that the subcontractor's trust claim, including interest on the trust funds, takes priority over the solicitors' charging order.

The appellants' home was destroyed by fire and rebuilt by the respondent contractor, paid through the appellants' insurer.

The final insurance cheque of $24,828.48 was made payable only to the appellants, who kept the funds.

The respondent sued in Small Claims Court for breach of contract and won.

On appeal, the appellants argued the trial judge erred in finding they owed the funds to the respondent.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the final payment was intended to cover the respondent's approved final invoice.

The appellant contractor appealed a Small Claims Court decision dismissing its claim for an unpaid final invoice of $14,104.17 for home renovations.

The trial judge had found insufficient evidence to prove the claim because the supporting receipts were not filed, despite finding the contractor credible.

The Divisional Court held this was an error of law, as the invoice itself was sufficient evidence and the respondents failed to lead evidence challenging the specific amounts.

The court substituted its own decision, granting judgment for the appellant in the amount of $13,804.17, deducting only a disputed charge for used heaters.

The applicant sought judicial review to quash a municipality's decision awarding a construction contract to a third party, alleging breaches of procedural fairness and natural justice.

The Divisional Court dismissed the application, finding that the requested remedy of certiorari or mandamus was discretionary and inappropriate because the third party had already commenced work.

The court concluded that damages would be an adequate and preferable remedy for the applicant.

The appellant brought an appeal under the Construction Lien Act from a Master's reasons before the report was confirmed.

The court previously found it lacked jurisdiction to hear the appeal, as the proper procedure was a motion to oppose confirmation under Rule 54.09.

In this endorsement on costs, the court awarded partial indemnity costs to the respondents for the jurisdictional issue, noting the appeal was unnecessary as the Master had advised the parties of the proper forum.

The court fixed costs at $2,500 for the first respondent and $1,500 for the second respondent.

The appellant hospital appealed a partial summary judgment awarding the respondent architectural firm over $1 million in a construction lien action.

The motion judge had relied on an 'admission' letter sent by the hospital following a pre-trial conference.

The Divisional Court allowed the appeal and set aside the summary judgment, finding that the motion judge erred by relying on the pre-trial communication contrary to Rule 50.03 of the Rules of Civil Procedure.

The Court also found that affidavit evidence from a peer-review architect raised a genuine issue for trial regarding the completion of the contract and the validity of the invoices.

The appellant appealed an order dismissing his motion to set aside a default judgment in a construction lien action.

The action against the appellant was based on a personal guarantee of a corporate defendant's obligations.

The Divisional Court upheld the master's decision, finding that service by registered mail complied with the Construction Lien Act.

The court also agreed that the appellant failed to meet the three-pronged test to set aside a default judgment, specifically failing to provide a plausible explanation for the default and delaying eight months before bringing the motion.

The appeal was dismissed.