Daniel Tracy Resnick

In a priority dispute following the bankruptcy of a paving company, a bond company argued that funds held by the receiver in a project account were statutory trust funds under the Construction Lien Act and therefore excluded from the bankrupt's estate under s. 67(1)(a) of the Bankruptcy and Insolvency Act.

The court dismissed the trust claim, finding that the funds lacked the certainty of subject matter required to constitute a true common law trust, as they were not identifiable or held separately prior to the receivership.

Consequently, the funds were to be distributed under the BIA scheme.

The defendant brought an unsuccessful motion for summary judgment to dismiss the plaintiff's multi-million dollar construction delay claim.

The court determined that the summary judgment motion was a bold and risky tactical strategy in a complex case where a trial was inevitable.

The plaintiff was awarded partial indemnity costs for the main summary judgment motion and the related leave motion, while the defendant was awarded costs for a successful production motion, resulting in a net costs award of $145,878.62 payable to the plaintiff.

The defendant general contractor brought a motion for summary judgment to dismiss the plaintiff subcontractor's $11.1 million delay claim, arguing the plaintiff failed to provide strict contractual notice of the delay.

The plaintiff argued that the defendant had actual notice and that strict compliance was not required given the surrounding circumstances.

The court dismissed the motion, finding that the issues of notice, credibility regarding backdated letters, and the complex factual matrix of the construction delay raised genuine issues requiring a full trial.

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 respondent contractor entered into a construction contract with the appellant to build management offices.

The contractor advanced a claim for extras due to delays.

The application judge ordered the Project Engineer to consider a portion of the claim ($1,437,976), finding the contractor provided sufficient notice under the contract.

The Court of Appeal allowed the appeal, holding that the application judge committed an extricable error of law by interpreting the contractual provision in isolation.

Read as a whole, the contract required detailed information to support a claim for extras, which the contractor failed to provide.

The application was dismissed and the claim for extra payment was declared barred.

The appellant condominium corporation appealed a decision dismissing its application to force a unit owner to remove a hot tub from his exclusive use common element backyard patio.

The application judge found that the hot tub was not an 'addition, alteration or improvement' under s. 98(1) of the Condominium Act requiring board approval.

The Court of Appeal upheld this interpretation, agreeing that the hot tub did not change the structure of the property or increase its value, and was analogous to a barbecue or patio furniture.

The appeal was dismissed.