B. Bowles

The plaintiff brought a motion to correct a misnomer in the title of proceedings and to direct the Land Registrar to certify a certificate of action registered on title.

The court dispensed with service on the landlord due to unsuccessful attempts and the lack of prejudice.

The court granted the motion, holding that it had the authority to amend the certificate of action nunc pro tunc and to direct the Land Registrar to certify the correct registration.

The defendants, a lawyer and his firm, brought a motion for summary judgment to dismiss the plaintiff's professional negligence action as statute-barred.

The plaintiff alleged the defendants negligently failed to perfect a construction lien, resulting in the loss of its secured position.

The plaintiff argued it did not discover the claim until the conclusion of the debtor's bankruptcy proceedings when it became clear no funds would be recovered.

The court held that the plaintiff knew or ought to have known it had suffered a loss and that a civil action was legally appropriate by October 2014, when it was advised the lien had expired.

The bankruptcy proceeding was not an alternative dispute resolution process that delayed the limitation period.

The action, commenced in 2019, was statute-barred and dismissed.

The defendants in a construction lien action brought a motion to amend their counterclaim to add two separate corporate entities and their principal as plaintiffs, or alternatively, to have the counterclaim proceed as a separate action.

The court held that the Construction Lien Act prohibits adding non-parties as plaintiffs by way of counterclaim.

However, the court granted leave to withdraw an admission regarding the contracting party and ordered that the proposed counterclaim be severed and proceed as a separate action to be tried together with the lien action.

The defendant brought an unsuccessful motion for summary judgment to dismiss the plaintiff's multi-million dollar construction delay claim.

The court determined that the summary judgment motion was a bold and risky tactical strategy in a complex case where a trial was inevitable.

The plaintiff was awarded partial indemnity costs for the main summary judgment motion and the related leave motion, while the defendant was awarded costs for a successful production motion, resulting in a net costs award of $145,878.62 payable to the plaintiff.

The defendant general contractor brought a motion for summary judgment to dismiss the plaintiff subcontractor's $11.1 million delay claim, arguing the plaintiff failed to provide strict contractual notice of the delay.

The plaintiff argued that the defendant had actual notice and that strict compliance was not required given the surrounding circumstances.

The court dismissed the motion, finding that the issues of notice, credibility regarding backdated letters, and the complex factual matrix of the construction delay raised genuine issues requiring a full trial.

The defendant homeowners brought a motion for partial summary judgment seeking a declaration of their maximum holdback obligation under the Construction Lien Act and dismissal of the subcontractor’s claim against them beyond that amount.

The court considered whether the subcontractor’s second lien could enforce a holdback arising from services supplied prior to the discharge of an earlier lien and whether the project involved one continuing contract or a new contract after a hiatus in work.

The court held that once the first lien was discharged, the subcontractor’s lien rights for earlier services were extinguished and could not be revived.

Even if the later agreement constituted a continuation of the original contract, the subcontractor’s lien rights relating to earlier work had expired or were waived.

The owners’ holdback obligation was limited to ten percent of the value of services supplied after the later contract resumed.

The moving parties sought a stay of five construction lien actions commenced by the construction manager and general contractor, arguing the disputes were subject to contractual arbitration clauses.

The dispute arose from a large construction project involving numerous subcontractors and more than fifty lien claims consolidated into a construction lien reference under the Construction Lien Act.

The court considered whether arbitration should proceed despite the risk of multiplicity of proceedings and the exclusion of subcontractor lien claimants from the arbitral process.

The court held that the moving parties had waived arbitration by first commencing litigation, had delayed unduly before seeking arbitration, and that a stay would cause unfairness and fragmented proceedings.

Exercising discretion under the Arbitration Act, 1991 and the Courts of Justice Act, the court refused the stay so that all disputes could proceed in the single court reference.