Damon Stoddard

The court ruled on the admissibility of expert evidence in a construction lien action.

The defendant sought to call Michael Colalillo, a structural engineer, as an expert under rule 53.03 of the Rules of Civil Procedure.

The court found that Mr. Colalillo did not meet the requirements to testify as a rule 53.03 expert due to non-compliance with the rule’s requirements for expert reports.

However, the court permitted Mr. Colalillo to testify as a participant expert, subject to a qualification voir dire, as his opinions were based on his personal observations and participation in the project.

The court struck his litigation reports and affidavit sworn February 11, 2025, but allowed his earlier affidavit and appended reports from 2022 to be admitted.

The court denied the defendant’s motion to adjourn a peremptory trial week in a Construction Act lien action, finding insufficient medical evidence to support the principal’s inability to participate.

The decision reviews the discretionary nature of adjournment requests, the need for transparency and timely disclosure, and the importance of summary proceedings in lien actions.

The court found no compelling grounds for adjournment and highlighted the risk of prejudice and delay to the plaintiff and the administration of justice.

This is a costs endorsement following motions to compel discovery answers.

The Plaintiff, Vanalt Electrical Construction, Inc. (VEC), sought costs for its motion, while the Defendants, Ozz Electric Inc. et al., sought costs or reservation.

The court awarded VEC $5,000 in partial indemnity costs, finding that the Defendants' conduct unnecessarily prolonged the discovery process and increased litigation expenses.

Costs related to 33 adjourned questions were reserved for future determination.

Homeowners appealed from a motion judge's order dismissing their motion for a declaration that the respondents breached a Minutes of Settlement and granting the respondents declaratory relief enforcing the Minutes of Settlement.

The motion judge found that the respondents had complied with the Minutes of Settlement based on evidence that the work had been completed, including HVAC work, plumbing obligations, and permit closures.

The appellants advanced numerous grounds of appeal, all of which were dismissed.

The plaintiffs and defendants entered into Minutes of Settlement to resolve a dispute over the construction of a residence.

The plaintiffs subsequently brought a motion for summary judgment, alleging the defendants breached the settlement terms regarding electrical, plumbing, HVAC, and roofing work, and sought damages.

The defendants brought a cross-motion to enforce the settlement, arguing they had fully complied.

The court reviewed the evidence and found that the defendants had completed all required work to the plaintiffs' satisfaction and that the settlement funds had been properly released.

The court dismissed the plaintiffs' motion, granted the defendants' motion to enforce the settlement, and dismissed the underlying action and counterclaim.

A subcontractor brought a motion for summary judgment in a construction lien action seeking payment for stair construction work performed during a residential renovation.

The defendants argued that leave for summary judgment should not be granted and disputed whether work had been performed on the final date necessary to render the lien timely.

The court granted leave under s. 67(2) of the Construction Lien Act and held that uncontradicted documentary evidence established that the subcontractor’s work continued to the relevant date.

The court rejected arguments that the absence of live testimony from the worker required an adverse inference and found the lien had been registered within the statutory period.

Judgment was granted jointly and severally against the contractor and the homeowners.

Following an undertakings and refusals motion, the defendant sought partial indemnity costs of $8,111.87.

The court found the requested amount excessive given the straightforward nature of the motion, which was argued within one hour and did not involve cross-examinations.

The court nevertheless recognized that the plaintiffs satisfied numerous undertakings after the motion was brought and had been successful on several points.

Balancing these factors, the court fixed the defendant’s partial indemnity costs at $2,500 inclusive of HST and disbursements.

Following a motion concerning the vacating of construction liens upon posting reduced security, the moving parties sought partial indemnity costs of approximately $7,700.

The court considered the circumstances of the motion, including short service of the original motion, the fact that the ultimate relief ordered differed from the relief originally sought, and the novelty of the reduced-security structure proposed under the Construction Lien Act.

The court found the responding lien claimants’ opposition to be reasonable and noted that alternative statutory mechanisms were available to the moving parties without requiring the motion.

Given the mixed success and the conduct of the moving parties, the court declined to award costs.

Mortgagees brought a motion under ss. 44(2) and 78 of the Construction Lien Act seeking to vacate five construction liens from title to condominium units by posting alternative security.

The development consisted of 26 commercial condominium units, most of which had already been sold, while five units remained unsold.

Lien claimants argued that security equal to nearly the full amount of the liens should be posted in cash from sale proceeds.

The court held that the mortgagees’ proposal—posting partial cash security while leaving the liens on title to the remaining unsold units—provided more than adequate combined land and cash security and better preserved potential equity by reducing mortgage debt and accumulating interest.

The court ordered the liens vacated from the sold units upon posting security while remaining on the unsold units pending further order.

Multiple motions arose in more than 45 construction lien actions concerning five related solar farm projects across Eastern Ontario.

The plaintiff sought transfer and consolidation of numerous lien actions, while the general contractor sought reduction of security posted to vacate liens under the Construction Lien Act.

The court declined full consolidation, instead designating “main actions” for each project and implementing procedural directions to coordinate litigation efficiently while avoiding administrative burdens associated with transferring and merging dozens of proceedings.

The court partially granted the motion to reduce security where duplicate or inflated lien claims were conceded, while adjourning the balance pending further negotiations and analysis of holdback exposure and overlapping claims.