Master Carol Albert

A contractor performing underground garage restoration severed an underground hydro cable while chipping concrete at the entrance to a parking garage.

The property owner withheld payment of certified progress invoices and claimed backcharges for repair costs arising from the incident.

The court held that the contractor was contractually responsible for locating underground utilities and was liable for the repair costs because it failed to obtain a hydro locate that would have prevented the damage.

However, the owner was not entitled to withhold certified payments while awaiting potential claims and was required to pay contractual interest on the delayed invoices.

The contractor’s damages and the owner’s backcharges offset each other, leaving only interest payable.

The corporate plaintiff brought a motion seeking leave under Rule 15.01(2) of the Rules of Civil Procedure to permit its president, who was not a lawyer, to represent the corporation in a construction lien action and also sought to set aside a noting in default on a counterclaim.

The court held that a corporation must normally be represented by counsel and that leave for non-lawyer representation requires evidence both of financial inability to retain counsel and of the proposed representative’s ability to conduct the litigation.

The court found the evidence of financial inability inadequate and concluded the proposed representative’s conduct demonstrated he was incapable of responsibly managing complex civil litigation.

The court further held that under s. 54 of the Construction Lien Act a defendant seeking to set aside default must provide evidence of a meritorious defence.

Because no such evidence was provided, the motion to set aside the default was dismissed with prejudice.

Following a successful motion for security for costs and further discovery, the court determined the appropriate costs payable by the unsuccessful plaintiff.

The court applied the factors under Rules 57.01, 49 and 1.04 of the Rules of Civil Procedure, including indemnification, reasonable expectations of the unsuccessful party, importance of the motion, complexity, conduct, and proportionality.

The court reduced the hourly rates and hours claimed by defence counsel as excessive for a routine security for costs motion despite the factual complexity of the litigation.

Substantial indemnity costs were denied despite the plaintiff’s failure to disclose certain property interests, as the evidence could have been discovered earlier.

Costs were fixed at $14,736.02 payable by the plaintiff to the moving defendants.

A millwork contractor brought a construction lien action seeking payment for cabinetry and millwork supplied under a construction contract.

The project manager asserted set‑off for alleged deficiencies, replacement of a merchandising unit, and delay.

The court found the contractor had substantially performed the contract work and that deficiencies identified by the defendant were either minor or attributable to design changes or other trades.

Evidence established the failure of the merchandising unit to fit properly resulted from incorrect construction of a curved drywall wall by another trade rather than any fault of the contractor.

The defendant therefore failed to establish entitlement to set‑off or damages for delay, and judgment was granted for the full contract amount and authorized extras.

The moving party sought to set aside a noting in default in a construction lien action, arguing improper service of the statement of claim and lack of awareness of the proceeding.

The court held that service by mail was valid under the Rules of Civil Procedure after the process server attended at the corporation’s recorded address and could not effect personal service.

The moving party failed to provide a satisfactory explanation for failing to deliver a defence, failed to demonstrate a continuous intention to defend, and provided no evidence supporting a meritorious defence as required under the Construction Lien Act.

Bare denials in a proposed statement of defence were insufficient.

The court therefore declined to grant relief from default.

The defendant moved to set aside a noting in default in a construction lien action, arguing that the statement of claim had not been properly served and that it did not come to its attention before the deadline to deliver a defence.

The court held that service was valid under both the Rules of Civil Procedure and the Construction Lien Act because the claim was left with a person appearing to be in control of the registered business address and was also served by registered mail to the address listed in a registered lien document.

The court further found the defendant failed to demonstrate a reasonable explanation for not defending, failed to establish a continuous intention to defend, and failed to provide evidence of a meritorious defence as required by s. 54 of the Act.

Bare denials and unsupported allegations regarding lien preservation, perfection, and alleged accounting discrepancies were insufficient.

The motion to set aside the noting in default was dismissed.

A defendant in a construction lien action moved to set aside a noting in default, alleging improper service of the statement of claim and lack of notice of the proceeding.

The court applied the test under the Construction Lien Act requiring a defendant to show a valid reason for default, a continuous intention to defend, and evidence of a meritorious defence.

The court found that service at the corporation’s publicly represented business address was valid and that the defendant failed to adequately explain its failure to respond.

The defendant also failed to provide any probative evidence supporting the alleged defences in its proposed pleading.

The motion to set aside the noting in default was therefore dismissed.

A construction lien action arising from renovations to one property prompted competing motions concerning claims related to a separate renovation project at another property.

The lien claimant sought to add the other property’s owner as a defendant and amend its claim to recover unpaid invoices relating to that project, while the defendant sought to add that owner as a plaintiff by counterclaim and include claims for overpayments.

The court held that s. 55(1) of the Construction Lien Act restricts lien claimants from joining unrelated contract claims and therefore refused the requested amendment and joinder.

However, under s. 55(2) the defendant’s counterclaim against the lien claimant could include claims arising from another contract between the same parties, even if unrelated to the improvement.

The motion to sever those portions of the counterclaim was dismissed, while both motions to add the additional party failed.

In a construction lien reference, the defendants moved for judgment enforcing a consent to judgment executed by the plaintiff after the plaintiff failed to post agreed security for costs.

The plaintiff had repeatedly breached court orders, including deadlines for undertakings, document production, and service of trial evidence.

The court exercised discretion to enforce the consent to judgment and considered the plaintiff’s repeated non-compliance and apparent inability or unwillingness to prosecute the action.

The motion judge held that these breaches undermined the plaintiff’s bona fide intention to proceed to trial.

Judgment was granted dismissing the plaintiff’s claim, discharging the lien, and discontinuing the defendants’ counterclaim.

Following a bifurcated trial where the plaintiff was successful in establishing an owner-contractor relationship, the court determined the costs payable for the first issue.

The court found the plaintiff's offer to settle did not attract substantial indemnity costs as it was served less than seven days before trial.

The court declined to order costs payable from the receiver's reserve fund, finding the receiver unreasonably duplicated the mortgagee's efforts.

Costs were fixed on a partial indemnity scale at $68,421.97, payable by the mortgagees, with payment deferred until the completion of the reference trial.

Following a trial under the Construction Lien Act, the successful contractor sought substantial indemnity costs after obtaining judgment for unpaid construction work and successfully defending a counterclaim.

The court considered factors under Rules 49 and 57.01 of the Rules of Civil Procedure, including settlement offers, proportionality, the complexity of the proceeding, and litigation conduct.

The contractor did not achieve a result better than its Rule 49 offer to settle and therefore was not entitled to substantial indemnity costs.

The court nevertheless found the contractor overwhelmingly successful and awarded costs on a partial indemnity scale.

Costs were fixed at $108,943.67 inclusive of fees, disbursements, and HST.

The plaintiff contractor brought a construction lien action for unpaid invoices totaling $30,716.09 for home renovations.

The defendant homeowner counterclaimed for deficiencies, accommodation expenses, and a full refund, arguing the unwritten contract was unenforceable under the Consumer Protection Act.

The court found the defendant deliberately deceived the plaintiff by promising payment to ensure completion.

Applying section 93(2) of the Consumer Protection Act, the court held it would be inequitable not to enforce the contract.

The plaintiff was awarded the balance owing, less set-offs for minor deficiencies and cleaning.

A contractor commenced an action to recover payment under a fixed-price construction contract after leaving a renovation project when the owner refused to pay a milestone invoice.

The owner counterclaimed for completion costs, deficiencies, delay, and lost rental income.

The court held that the owner’s design changes altered the sequence of work and made the contractual milestone conditions impossible to satisfy, giving rise to an obligation to renegotiate milestone payments in good faith.

By refusing to negotiate or make any interim payment after the contractor completed the mezzanine stage, the owner repudiated the contract.

The contractor was entitled to quantum meruit compensation for services and materials supplied, allowable extras, overhead and profit, and lost profit on the remaining contract work.

Claims for delay, lost rental income, and most deficiencies were rejected, and the construction lien was held to have been preserved and perfected in time.

A reference under the Construction Lien Act required the court to determine whether the contractual relationship between a developer and a construction company was one of owner and construction manager (agent) or owner and general contractor.

The written agreement used a construction management form contract but included amendments allowing the contractor to contract directly with trades and assume risk for cost overruns beyond a specified threshold.

The court found ambiguity in the contract language and admitted extrinsic evidence to interpret the parties’ relationship.

Examining the contractual provisions and the parties’ conduct, including direct contracting with trades and liability for payment and cost overruns, the court concluded the arrangement functioned in substance as a general contracting structure.

Accordingly, the contractor was treated as a general contractor for purposes of determining priorities and holdback obligations under the Construction Lien Act.

Following a successful construction lien trial in which the plaintiff recovered unpaid accounts and defeated the defendant’s set‑off and counterclaim, the court determined costs of the actions and reference under the Construction Lien Act.

The litigation had become complex due largely to the defendant’s conduct, including repeated procedural defaults, unsuccessful motions and appeals, and failure to comply with court orders, which significantly lengthened the proceeding.

The court considered the factors under Rule 57.01, the plaintiff’s Rule 49 offer to settle, proportionality, and the principle of indemnification.

Finding the defendant overwhelmingly responsible for the escalation of costs and noting that the plaintiff had recovered more than double its settlement offer, the court awarded partial indemnity costs up to the offer date and substantial indemnity costs thereafter.

Costs of $78,107.90 were fixed in favour of the plaintiff.

Following a construction lien trial in which the contractor substantially succeeded and the homeowners’ counterclaim largely failed, the court determined the appropriate costs award.

The contractor had recovered most of its lien claim while the homeowners succeeded only minimally on their counterclaim.

The court considered factors under Rule 57.01(1) and the discretionary costs authority under the Courts of Justice Act and Construction Lien Act.

Due to repeated non‑compliance with court orders, failure to attend pre‑trial events, and trial by ambush conduct by the homeowners, the court awarded a combination of partial indemnity and substantial indemnity costs.

Total costs were fixed at $12,235.91 inclusive of HST, payable jointly and severally by the homeowners.

The plaintiff registered a construction lien and sought payment for services relating to a residential renovation project.

The defendant and third party argued that the three participants were partners in a real estate venture rather than contractor and owner.

The court examined the memorandum of understanding, the parties’ conduct, and the indicia of partnership under the Partnerships Act.

It held that the plaintiff was a partner who contributed professional services rather than a contractor, and therefore could not claim a construction lien against property in which he had a beneficial ownership interest.

The lien claim and alternative contractual claims were dismissed, and the defendant’s counterclaim and third‑party claim for contribution toward alleged partnership losses were also dismissed for failure of proof.

A contractor commenced an action to recover the unpaid balance under a construction contract for excavation and foundation work at a residential property.

The owners defended and counterclaimed alleging deficient and incomplete work, asserting a lower contract price and claiming damages for completion and repair costs.

The court found that the parties entered into a verbal agreement whose terms were reflected in an unexecuted written contract prepared contemporaneously by the contractor.

The court determined that the contractor had not completed certain above‑ground block walls but rejected most alleged deficiencies due to lack of proof.

After deducting proven completion costs, judgment was granted for the contractor for the remaining contract balance.

The plaintiff elevator maintenance company registered ten construction liens against five apartment buildings owned by the defendants for unpaid maintenance and repair services totaling $122,810.30.

The defendants claimed a set-off of $75,000, alleging the plaintiff failed to properly maintain the elevators, necessitating upgrades by a new contractor.

The court found the plaintiff proved its accounts and the defendants failed to prove any breach of contract by the plaintiff.

The court upheld the liens, including those for advance payments, and dismissed the defendants' set-off claim.

The court also dismissed a mid-trial recusal motion brought by the defendants.

A contractor sought recovery of the unpaid balance of a contract for the design and installation of custom kitchen cabinetry and enforcement of a construction lien.

The homeowners counterclaimed for damages alleging design deficiencies, improper installation, and associated replacement costs relating to cabinetry, granite countertops, and other kitchen components.

The court found the contractor performed the contractual work and that the alleged deficiencies were either unproven, attributable to third parties, or resulted from the homeowners’ failure to mitigate.

The court further determined that the contractor’s lien was preserved and perfected within the statutory time limits under the Construction Lien Act.

Judgment was granted for the contractor for the unpaid contract balance and the counterclaim was dismissed.