Brendan D. Bowles

The applicants sought to remove the sole arbitrator in a complex construction arbitration, alleging his extensive questioning of witnesses created a reasonable apprehension of bias.

The court found it had jurisdiction to hear the application under the Arbitration Act, 1991, and that the application was not out of time.

However, the court dismissed the application on the merits, finding that the arbitrator's interventions were a legitimate exercise of his truth-seeking function and subject matter expertise, and did not demonstrate bias or pre-judgment.

Three lien claimants brought a motion in a receivership proceeding to determine the proper interpretation of s. 78(2) of the Construction Act regarding priority over building mortgages.

The claimants argued they were entitled to priority for the holdback deficiency against each building mortgage individually, effectively multiplying their priority amount.

The court dismissed the motion, holding that the lien claimants' priority is limited to the extent of the single deficiency in the owner's holdback over all building mortgages combined, as multiplying the priority would be contrary to the statutory scheme and unfairly prejudice subsequent encumbrancers.

The plaintiff brought a motion for leave to amend its statement of claim to substitute two corporate defendants after discovering that the originally named defendant corporation never existed.

The proposed substitutions were sought on the basis of misnomer under Rules 5.04(2) and 26.01 of the Rules of Civil Procedure.

The court held that the circumstances constituted misnomer because the litigation was clearly directed at corporations controlled by the same principal, and a reasonable reader would understand that the claim was intended for those entities.

The court further found no non‑compensable prejudice, as the proposed defendants had knowledge of the claim and had effectively defended the action from the outset.

Leave to amend and substitute the proper corporate defendants was granted, and the substituted defendants were ordered to satisfy a prior interlocutory costs order.