Colin Holland

The defendant general contractor moved to have a subcontractor's construction lien declared expired for failure to preserve it in a timely manner under the Construction Act.

The moving party argued the last bona fide supply of services occurred in December 2019, while the responding party provided uncontradicted affidavit evidence that work continued until February 2020 due to delays.

The court dismissed the motion, finding a genuine issue requiring a trial regarding the date of the last bona fide supply, as the conflicting evidence and final invoices needed to be tested through cross-examination.

The defendants brought a motion for summary judgment seeking to dismiss the plaintiffs' claims in their entirety, arguing there were no genuine issues for trial.

The plaintiffs opposed, asserting that significant credibility issues and allegations of conspiracy, breach of confidentiality agreements, and fiduciary duties required a full trial.

The court found numerous and significant credibility issues, particularly concerning the misappropriation of business opportunities (Kubota, Hyundai clients) and the circumstances surrounding the hiring of former employees by a competitor.

Given the conflicting evidence and the nature of conspiracy allegations, the court determined that a fair and just determination could not be made on a summary judgment motion.

The motion was dismissed, and the action was ordered to proceed to discoveries and trial.

The plaintiffs, Chinese companies, sued the defendants in Ontario for alleged fraud, claiming the defendants stripped assets from two non-party Chinese companies, making them unable to satisfy Chinese default judgments.

Three motions were heard together: the defendants' motion to set aside an ex parte Certificate of Pending Litigation (CPL), and the plaintiffs' motions for a new CPL on another property and a Mareva injunction.

The court dismissed the plaintiffs' motions for a Mareva injunction and a new CPL, finding they failed to meet the strict requirements, including providing a proper undertaking for damages, establishing a strong prima facie case of fraud, or demonstrating a real risk of asset removal or irreparable harm.

The court granted the defendants' motion to set aside the existing ex parte CPL due to the plaintiffs' material non-disclosure on the original ex parte motion, including the dismissal of fraud complaints by Chinese police and the absence of fraud allegations in the Chinese litigation.

Costs were awarded to the defendants on a partial indemnity basis.

The defendants brought a motion for an order requiring the plaintiffs to post security for costs.

The plaintiffs conceded the appropriateness of security for costs, leaving the quantum and timing as the main issues.

The court, after reviewing the defendants' bill of costs and considering the uncertainty regarding trial length and witness numbers, ordered the plaintiffs to post security for costs in tranches for discovery, mediation, and pre-trial stages, with the possibility of seeking further security for trial costs later.

The court adjusted the hourly rate for counsel and estimated hours for various stages.

The appellants appealed a summary judgment declaring them in breach of the trust provisions of the Construction Lien Act and ordering them to pay $216,662.84 to Airex Inc. Ben Air System Inc. had entered into a subcontract with Omico Mechanical Ltd. to perform HVAC work on a TTC facility and ordered equipment from Airex.

The appellants argued that Ben Air had paid out more money on the project than it received, and therefore had not breached the trust provisions.

The Court of Appeal upheld the summary judgment, finding that the appellants failed to file evidence of sufficient weight to support their position.

The evidence was contradictory, lacked documentary support, and was delivered late.

The court found that once Airex established it was a subcontractor owed money and that Ben Air had received trust funds, it was Ben Air's burden to show the trust monies had been properly applied.

This trial determined the operability of a $65,298.24 credit memo issued by Architectural Millwork & Door Installations Inc. (AMDI) to Provincial Store Fixtures Ltd. (Provincial) in a construction subcontract dispute.

The court found that Provincial had induced AMDI to issue the credit memo with a promise to remit payment upon receiving funds from the general contractor, Govan Brown, a promise Provincial subsequently breached.

AMDI was deemed entitled to revoke the credit memo because Provincial failed to fulfill its undertaking and could not demonstrate reliance on the credit when it settled its own claim against Govan Brown.

Provincial was ordered to pay AMDI the full amount of the credit memo plus pre-judgment interest.

The court fixed the "costs thrown away" for the plaintiffs in the sum of $30,000, inclusive of disbursements and H.S.T., payable by the defendants jointly and severally.

These costs were incurred by the plaintiffs due to the defendants' prolonged denial of successor corporation status, which necessitated the plaintiffs' efforts to establish CSL's responsibility for CPSL's liabilities.

The court had previously granted the defendants' motion to set aside pleadings against CPSL on the condition that the plaintiffs be paid these costs.

This decision addresses the costs arising from a dismissed summary judgment motion brought by the defendant, Klein-Rose Homes Inc., under the Construction Lien Act.

The court applied section 86 of the CLA, which grants broad discretion in awarding costs in construction lien proceedings, and considered the Rules of Civil Procedure where not inconsistent.

The plaintiff, Allcon Concrete & Haulage Ltd., was the successful party on the underlying motion and sought costs.

The court fixed costs at $26,560 for the plaintiff, payable upon the plaintiff's success at trial or a subsequent summary judgment motion in proving the validity of its claim for lien, irrespective of the full success on the contract claim or defense against the counterclaim.

The court rejected the defendant's argument to reserve costs to the trial judge and the plaintiff's assertion of the defendant's "unduly aggressive and unreasonable" conduct.

The plaintiffs brought a motion seeking leave to examine two non-party witnesses and to amend the claim to remove one of the plaintiffs in his personal capacity.

The court dismissed the request to examine the non-parties, finding it premature as the plaintiffs had not yet exhausted the discovery process through a refusals motion.

The court granted the request to remove the individual plaintiff on terms, including that he pay $2,000 in costs to one of the defendants and remain liable for costs awarded against the unincorporated plaintiffs.