Carol Albert

This decision addresses four motions in consolidated construction lien actions.

Lien claimants Vestacon Limited and Plan Group Inc. sought to validate their liens against properties owned by 1302207 Ontario Limited (Peter Co.) and 364 Richmond Street West Inc. (Richmond Co.), following the bankruptcy of the tenant, Arc Productions Ltd. The court declared all three Certificates of Substantial Performance (CSPs) invalid due to premature issuance and insufficient property descriptions.

Consequently, Vestacon's lien was found to be timely, having been registered within 45 days of contract completion.

The court also affirmed the validity of Vestacon's Section 19 notices to the landlords, establishing their liability.

Furthermore, Vestacon's lien was extended to include the 364 Richmond Street West property, and leave was granted to add Richmond Co. as a defendant.

For Plan Group's lien, while the CSPs were invalid, a genuine issue for trial was found regarding the exact date of last supply, leading to the dismissal of the owners' motion to declare Plan Group's lien expired.

The plaintiffs, Tony’s Touch Plumbing Ltd. and Level V Design & Build Inc., brought construction lien claims against the defendant, Hatcho Nersesian, for unpaid plumbing, HVAC, and project management services and materials supplied for a new home construction.

Mr. Nersesian disputed the claims, alleging overcharging, deficient work, and incomplete work, and brought counterclaims for backcharges and exaggerated lien claims under section 35 of the Construction Lien Act.

The court found that Mr. Nersesian breached his contracts with Tony’s by imposing unreasonable deadlines and terminating the contract without allowing an opportunity to complete work or rectify deficiencies.

The court also found that Level V was entitled to a project management fee for the initial "weather tight" stage and a commission on trades it introduced thereafter, but not a full project management fee for the entire project due to lack of evidence of services.

Mr. Nersesian's counterclaims for backcharges and section 35 damages against both plaintiffs were dismissed due to failure to mitigate and lack of evidence of damages.

Donset Construction Limited moved to withdraw admissions regarding the quantification of lien claims and to vary summary judgment orders previously granted in favour of MGI Construction Group and Venture Excavating & Contracting Ltd. Donset argued its failure to appear at the original summary judgment motions was due to mistake.

The court denied the motion to vary, finding Donset's non-attendance was not due to accident or mistake but deliberate avoidance.

Although leave to withdraw admissions was granted for expediency, the court found that even if the new evidence had been considered, it would not have changed the original summary judgment amounts.

The motions were dismissed with costs awarded to MGI, Venture, and Strela Trucking Ltd.

Chartis Insurance Company of Canada moved for partial summary judgment to dismiss a claim by Walsh Construction/Bondfield Partnership for payment on a performance bond, arguing the action was statute-barred.

The court found that determining whether the claim was statute-barred required extensive factual findings regarding the subcontractor's actual default, proper notice, and cure of defaults, which constituted genuine issues requiring a trial.

The motion was dismissed due to the complexity of the factual matrix and the risk of inconsistent findings with related construction lien actions involving other parties.

Dirm 2010 Inc. was substantially successful in a construction lien trial, recovering over $1.3 million.

This decision addresses the issue of costs.

The court, Master C. Albert, fixed costs on a partial indemnity scale, considering factors such as the principle of indemnity, reasonable expectation of the payor, complexity, importance of issues, and proportionality.

Dirm's failure to make a formal settlement offer under Rule 49 resulted in a $6,000 deduction from the awarded costs.

The court also adjusted counsel's hourly rates, reduced the time claimed for a junior lawyer due to excessive docketed time as a student, and disallowed costs for two lawyers attending trial.

Costs were fixed at $354,151.19 payable by Prestressed Systems Incorporated to Dirm 2010 Inc.

The defendant owners (Ikram) brought a motion under section 47 of the Construction Lien Act to discharge a construction lien registered by the plaintiff (Diamond Drywall Contracting Inc.) for $201,253.00.

The Master clarified that motions under section 47 are akin to summary judgment motions, allowing the Master to exercise expanded powers to weigh evidence and make findings of fact, consistent with the principles from Hryniak v Mauldin.

The court found no genuine issue for trial regarding $193,569.00 of the lien, as the original contract work was deemed completed by June 15, 2015, and lien rights for that work had expired.

However, genuine issues of credibility and fact remained concerning whether Diamond performed work on specific dates in May 2016, amounting to $7,684.00, which required a trial.

Consequently, the lien was partially discharged, reduced to $7,684.00, and security of $9,605 (including costs) was ordered to be posted.

The larger claim was allowed to proceed as a contract claim, and costs of $10,000 were awarded to the defendant.

Dean's Standard Inc. ("Dean's") brought a construction lien claim against Siljub Toronto Ltd. ("Siljub") for renovation services provided to a hotel room.

Dean's alleged an oral contract with individuals (Mr. O and Mr. Marchuk) who represented themselves as purchasers of the hotel, arguing they had apparent authority or that Siljub ratified the contract.

The court found no actual, apparent, or ostensible authority for Mr. O and Mr. Marchuk to bind Siljub, nor any ratification by Siljub.

The court also noted Dean's failure to name the actual contracting parties (Mr. O and Mr. Marchuk) as defendants.

Dean's request to amend its pleading to add unjust enrichment was denied due to prejudice and the expeditious nature of Construction Lien Act claims.

The claim was dismissed, and the construction lien discharged.

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.

Limen Group Ltd. brought a motion to strike out lien claims registered by Aluma Systems Inc. and Scott Forest Products Ltd., alleging the liens were registered against the wrong premises.

Limen argued the improved lands were confined to PIN 21219-0161, while Aluma and Scott registered against adjacent PINS 21219-0159 and 21219-0160.

The court, treating the motion akin to summary judgment, found genuine issues of fact requiring a trial, including whether the adjacent PINS were part of the "improved premises" or "lands enjoyed therewith" under the Construction Lien Act.

The motion to discharge the lien claims was dismissed.

The plaintiff, Alberto Becerra, sought leave to issue a fresh as amended statement of claim in a construction lien action, aiming to increase the claim quantum, add new grounds of recovery including unjust enrichment, punitive damages, and claims related to an unrelated prior project.

The court dismissed the motion, finding that leave ought not be granted as the motion was neither necessary nor would it expedite the resolution of the issues, as required by the Construction Lien Act.

Furthermore, even on the merits, the proposed amendments were largely statute-barred under the Limitations Act, constituted improper joinder of unrelated claims, or attempted to join a breach of trust claim, which is precluded by the Construction Lien Act.

The owner, 2247129 Ontario Inc., brought a motion to declare the construction lien of Clarkway Construction Ltd. expired.

The central issue was whether a subcontractor's lien rights could extend beyond the date the general contractor's contract with the owner ended by abandonment or termination.

The court found that the subcontractor's lien rights did not extend beyond the termination date of the general contract (February 9, 2016, at the latest).

The subcontractor, Clarkway, had a responsibility to stay informed about the project's status.

Since Clarkway registered its lien on April 15, 2016, more than 45 days after the general contract's termination, the lien was declared expired.

Costs were awarded to the owner.

JMCC Ltd., a cleaning subcontractor, sued general contractor Buttcon Limited for payment of services and extras on a construction project, registering a construction lien.

Buttcon counterclaimed for deficiencies and the cost of a bond to vacate the lien.

The court found JMCC was entitled to the adjusted fixed contract price for completed work and one verbally authorized extra for urgent overnight cleaning, but dismissed claims for other extras due to lack of written authorization and insufficient proof.

Buttcon's counterclaim for deficiencies was largely dismissed, as the issues were attributed to Buttcon's project mismanagement rather than JMCC's work quality.

Buttcon's claim for financing costs for vacating the lien was also dismissed, as it did not plead or prove damages under the Construction Lien Act.

A construction contractor sought payment for services and materials allegedly supplied to repair and preserve a partially completed luxury residence after the owners ran out of funds and construction stopped.

The court found that the parties had an agreement that the contractor would facilitate financing and carry out minimal repairs necessary to present the property to potential lenders.

The court accepted that certain cleanup, drywall repair, plumbing, and landscaping work had been performed with the owners’ knowledge or acquiescence.

However, recovery was limited to amounts the contractor proved it had actually paid or remained legally liable to pay.

The contractor was awarded reimbursement for proven expenditures totalling $51,000 plus interest.

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.

Following a trial under the Construction Lien Act, the successful lien claimant sought substantial indemnity costs exceeding $107,000, or alternatively partial indemnity costs exceeding $71,000.

The court considered the factors under Rules 57.01, 49 and 1.04 of the Rules of Civil Procedure and s. 86 of the Construction Lien Act, including the result achieved, proportionality, conduct of the parties, and reasonable expectations of the unsuccessful parties.

Although the successful party prevailed on most issues, the court found the time docketed and hourly rates claimed were excessive and disproportionate to the modest amounts in dispute.

The court also noted that the defendants’ conduct unnecessarily increased costs by pursuing trivial claims and taking unreasonable litigation positions.

Costs were fixed at a reduced partial indemnity amount reflecting fairness and proportionality.

A contractor brought a construction lien action seeking payment for renovation and addition work performed on the defendants’ residence.

The owners counterclaimed for delay damages, alleged deficiencies, and damages for a grossly excessive lien under the Construction Lien Act, and also brought a third‑party claim against the contractor’s principal.

The court held that the contracting party was the plaintiff corporation despite the use of a different business name in the written contracts, and that the lien had been properly preserved and perfected.

The owners were found to have breached the contract by failing to pay the balance owing after completion of the work.

Although the owners established contractual delay damages, most alleged deficiencies were not proven or were outside the scope of the contract.

Judgment was granted to the contractor for the unpaid contract balance subject to a set‑off for delay.

The plaintiff brought a motion to validate service of a statement of claim in a construction lien action or, alternatively, to extend the time for service under the Construction Lien Act.

The court found that the plaintiff failed to prove that the statement of claim had been personally served within the required 90‑day period and that the delay of approximately 16 months was unexplained and unsupported by compelling reasons.

Given the statutory objective of expeditious resolution of lien claims and the prejudice caused by maintaining a lien against the property, the court declined to extend time for service with respect to the lien claim.

The lien was therefore declared expired.

However, the court permitted the contractual and quantum meruit portions of the claim to proceed as an ordinary civil action and validated service for that limited purpose.

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.

Following the dismissal of Unimac's motion seeking the recusal of the Master on grounds of racial bias, the responding parties sought costs.

Unimac argued costs should be deferred to the Divisional Court pending judicial review.

The Master determined it was appropriate to fix costs immediately.

Finding that Unimac's motion was an abuse of process, involved scurrilous and unsubstantiated attacks on the integrity of the judicial officer, caused unnecessary delay, and that Unimac failed to accept a reasonable offer to settle, the Master awarded costs on a substantial indemnity scale.

Unimac was ordered to pay $52,810.37 to the Lead Respondents and $6,728.30 to St. Clare's.

The owner of leased commercial premises moved under the Construction Lien Act to declare three construction liens invalid and to discharge security posted to vacate them, arguing the lien claimants failed to correctly identify the owner in their claims for lien.

The court considered whether the naming errors constituted non‑compliance with s. 34(5) of the Act or merely a failure to strictly comply curable under s. 6.

The evidence showed the tenant owner had used multiple corporate and unregistered names and had not registered certain business names, contributing to confusion about the proper legal entity.

The court held that the errors—misplacing the owner’s name in the electronic form or naming related Equinox entities—were failures to strictly comply but not fatal defects, and no prejudice was established.

Motions to discharge the liens were dismissed and the lien claimants were permitted to amend pleadings to correctly name the tenant owner.