Brendan Donald Bowles

The court considered whether the plaintiff’s construction lien, not set down for trial within two years as required by the Construction Lien Act, could be enforced in another lien action relating to a different portion of the same wind energy project.

The court held that because the plaintiff’s lien and the other lien (Corbiere) were registered against different lands, they did not relate to the same “premises” under the Act.

As a result, the plaintiff’s lien expired and was ordered discharged.

The plaintiff brought a motion to discharge the defendant's construction lien, arguing it was discharged when the defendant inadvertently "registered" an application to delete it.

The defendant argued the lien was not discharged because the "registration" was incomplete as it was never certified by the Land Registrar and was subsequently withdrawn.

The court, applying statutory interpretation principles to the Land Titles Act and Land Registration Reform Act, held that "registration" is a staged process requiring both receipt and certification by the Land Registrar.

Since the application to delete the lien was received but not certified and was withdrawn, it was never fully registered, and thus the original lien was not discharged.

The plaintiff's motion was dismissed.

The defendants 1995636 Ontario Inc. and Lisa Bailey brought a motion seeking a stay of proceedings due to the plaintiff's alleged failure to timely disclose multiple settlement agreements with another defendant, 2495048 Ontario Inc. In the alternative, they sought severance of claims against them, arguing their involvement was discrete.

The court dismissed the motion for a stay, finding that the undisclosed agreements did not "entirely alter the landscape of the litigation" or change the adversarial position of the parties into a cooperative one.

The court also dismissed the motion for severance, determining that the test for joinder was met due to common questions of fact and law and interconnectedness between the claims across multiple properties, promoting efficiency and avoiding inconsistent judgments.

The appellants, lien claimants in a condominium development bankruptcy, appealed a motion judge's decision regarding the quantum of their priority under section 78(2) of the Construction Act.

They argued for a 20% priority due to two building mortgages, while the receiver contended it was a single 10% holdback deficiency.

The Court of Appeal granted leave to appeal, finding the statutory interpretation issue important.

On the merits, the Court of Appeal upheld the motion judge's interpretation, affirming that the priority is limited to the single 10% holdback deficiency, regardless of the number of building mortgages.

The appeal was dismissed.

Multiplex Construction Canada Limited brought motions for a sealing order concerning fraud allegations made against it and its officers, and alternatively, to strike references to its officers from the respondent's amended pleading.

Multiplex also sought a Rule 31.10 examination for discovery of a non-party, George Colk.

The court denied the sealing order, finding that the commercial and reputational interests cited did not meet the public interest requirement of the necessity test.

The motion to strike parts of the pleading was also denied, as it improperly attacked the evidentiary basis rather than the pleading's sufficiency.

The Rule 31.10 examination of Mr. Colk was granted, with specific terms for its conduct, but his request for upfront costs was denied, to be determined post-examination.

The plaintiff, Carillion Construction Inc., brought a motion to compel answers to a refused question during the "executive discovery" of the City of Toronto's representative.

The question sought disclosure of all relevant facts known by a key City employee, Jelena Rekalic, or relayed by her to others or counsel.

The City argued that such communications were protected by solicitor-client and litigation privilege.

The court dismissed the motion, finding that the broad request for "every fact" conveyed by Ms. Rekalic would improperly trench upon privilege and effectively constitute a second discovery without leave, which is not permitted under the Rules of Civil Procedure.

This case conference addressed the scheduling of Carillion Construction Inc.'s motion for further productions against the City of Toronto and NORR Limited in a complex multi-party construction litigation concerning Toronto's Union Station project.

Carillion sought various production orders and a discovery completion deadline prior to a scheduled mediation.

The City and NORR argued for delaying the motion until after mediation, citing the volume of existing documents and the laborious process of retrieving new ones.

The court determined that Carillion's motion should proceed prior to mediation, finding no cogent reason to delay the argument, but indicated that the actual production of documents, if ordered, could potentially be deferred until after the mediation.

The court urged counsel to schedule the motion.

This case conference endorsement outlines procedural progress in a complex, multi-party construction litigation involving Carillion Construction Inc., the City of Toronto, and NORR Limited, among others.

The court addressed the schedule for executive discoveries, ruling that they must proceed as planned, contrary to the City's submission.

It also confirmed the mediation schedule for March-April 2019, involving various claimants and insurers.

Further directions were given regarding documentary production by subcontractors and the City's amended third-party claim against Metrolinx, setting deadlines for Metrolinx's response or motion.

The general contractor, Brookfield, sought leave under section 67 of the Construction Lien Act to bring a motion for partial summary judgment.

The motion aimed to strike the delay portion of the subcontractor Limen JV's lien claim, alleging failure to provide proper notice of delay as required by contract.

Limen JV opposed, arguing that complex factual and credibility issues necessitated a full trial and that a partial summary judgment motion would cause delay.

The Master granted leave, finding that the proposed motion would likely expedite the resolution of the dispute by narrowing the issues for trial, particularly regarding the notice of delay claim, and was consistent with the Hryniuk objectives for summary judgment.

The plaintiff, a construction manager, moved for an order to compel the appointment of an expert to determine if project delays constituted a "material change in scope" under the contract, which would entitle them to additional compensation beyond a fee cap.

The court dismissed the motion, finding that delay itself was not a change in scope as defined by the contract, but rather a consequence.

The court also held that the specific dispute regarding materiality had not yet crystallized, rendering the motion premature, and declined to grant leave under the Construction Lien Act in the current circumstances.