Construction Law

The parties sought a consent order regarding funds paid into court to vacate a construction lien claim.

The Divisional Court granted the order, directing that $17,056.00 be paid out to the respondent in full satisfaction of the Master's Report and all subsequent proceedings, with the balance and accrued interest paid to the appellant.

The appellant appealed a decision of the Motions Judge that refused to confirm a Master's report regarding a construction contract dispute.

The Master had found an oral contract existed for construction costs but rejected the respondent's claim for a 20% management fee.

The Motions Judge set aside the report, finding no contract existed, and awarded the respondent the management fee on a quantum meruit basis.

The Divisional Court allowed the appeal, holding that the Motions Judge erred in law by treating the motion as a de novo hearing and failing to defer to the Master's factual findings.

The Master's report was confirmed.

The appellant builder appealed a Licence Appeal Tribunal (LAT) decision that directed Tarion Warranty Corporation to pay the respondent homeowners $300,000 for a defective concrete foundation.

The appellant argued the LAT erred in its procedural rulings and in its assessment of the warranty claim.

The Divisional Court dismissed the appeal, finding that the LAT's decisions were reasonable and based on concessions made by the appellant during the hearing.

Costs of $10,000 were awarded to Tarion.

The plaintiff brought a motion to set aside an order of a single judge of the Divisional Court, who had refused to quash the defendant's appeal of an order dismissing a motion to discharge construction liens.

The panel held that the original order dismissing the motion to discharge the liens was interlocutory, not final, because it did not finally determine the validity of the liens, which remained an issue for trial.

The motion was granted, the single judge's order was set aside, and the appeal was quashed.

The appellant hired the respondents to construct a basement apartment.

The respondents abandoned the project, forcing the appellant to hire another contractor to complete the work.

The appellant sued in Small Claims Court and was awarded damages, but appealed the assessment.

The Divisional Court dismissed most grounds of appeal, finding no palpable and overriding error in the trial judge's factual findings.

However, the court found errors of law in the trial judge's denial of additional financing costs and prejudgment interest.

The appeal was allowed in part, increasing the damages award and granting prejudgment interest.

The plaintiffs appealed a Master's order releasing over $450,000 held in trust as security to the defendants.

The funds were deposited pursuant to an undertaking in exchange for the discharge of a construction lien.

The Master had ordered the release of the funds because the plaintiffs failed to set the action down for trial within two years, reasoning that the funds were akin to security paid into court to vacate a lien under the Construction Lien Act.

The Divisional Court allowed the appeal, finding that the Master erred in conflating the discharge of a lien with vacating a lien, and that the undertaking clearly intended the funds to be held pending final resolution of the dispute.

The appellant, the operator of a contracting company, appealed a Small Claims Court judgment holding him personally liable, jointly and severally with his company, for $25,000 in damages arising from an incomplete pool and landscaping project.

The respondents had provided a $25,000 cheque to the company, which they alleged was held in trust for future work, while the appellant claimed it was for past work.

The Divisional Court allowed the appeal, finding that the trial judge's reasons were inadequate because they failed to explain the basis for imposing personal liability on the appellant, such as piercing the corporate veil or finding a breach of trust.

A new trial was ordered on the narrow issues of whether the funds were impressed with a trust and whether the appellant misappropriated them.

The appellant subcontractor appealed a Small Claims Court judgment dismissing its claim for breach of contract and granting the respondent's counterclaim for damages caused by roof leaks.

The appellant raised issues regarding contract terms, mitigation, a settlement agreement, causation of the leaks, and the award of damages.

The Divisional Court applied the Housen standard of review and found no palpable and overriding errors in the Deputy Judge's findings of mixed fact and law.

The appeal was dismissed, though a calculation error in the damages award was corrected.

The appellant appealed an order dismissing its motion to restore a construction lien action to the trial list and denying it the right to deliver a defence to the respondents' counterclaim.

The Divisional Court admitted fresh evidence explaining the delay, which was largely due to the parties focusing on a companion action and the respondents' own delays in fulfilling undertakings.

The Court found the appellant met both the 'ready for trial' test and the test for explaining delay without causing non-compensable prejudice.

The appeal was allowed, the action was restored to the trial list, and the appellant was permitted to file a defence to the counterclaim.

The appellant registered a claim for lien against condominium units owned by the respondent for work supplied to the developer.

The Master discharged the lien and certificate of action, finding the respondent was not an 'owner' under the Construction Lien Act and the appellant failed to properly preserve and perfect the lien by not naming the respondent.

The Divisional Court dismissed the appeal, upholding the Master's findings that the appellant had no valid lien rights against the respondent's units and affirming the Master's award of substantial indemnity costs due to the appellant's conduct.

The moving parties, four lien claimants, brought a motion for an extension of time to appeal an order determining that a mortgage had priority over their claims.

The delay in filing was short and caused by counsel's confusion over whether the appeal lay to the Court of Appeal or the Divisional Court.

The court found a bona fide intention to appeal, minimal prejudice to the respondent, and a live issue on the merits.

The motion was granted and the respondent was ordered to pay costs.