Dan J. Leduc

The court considered whether the plaintiff’s construction lien, not set down for trial within two years as required by the Construction Lien Act, could be enforced in another lien action relating to a different portion of the same wind energy project.

The court held that because the plaintiff’s lien and the other lien (Corbiere) were registered against different lands, they did not relate to the same “premises” under the Act.

As a result, the plaintiff’s lien expired and was ordered discharged.

The applicant sought an order to appoint an arbitrator and compel the respondent to participate in arbitration regarding disputes arising from construction contracts.

The respondent brought a cross-motion to dismiss the application or stay it, arguing that a different contract's dispute resolution clause (requiring court adjudication) applied and that Hydro One was a necessary party to any arbitration.

The court found that the broader CCDC Contract's arbitration clause governed the disputes, not the more specific Construction Contract's court adjudication clause.

The court dismissed the respondent's motion in its entirety and granted the applicant's request for arbitration, holding that questions of an arbitrator's jurisdiction, including whether Hydro One was a necessary party, should be left to the arbitrator under the competence-competence principle.

The Attorney General of Canada brought a motion to rectify a mutual release signed with Elmara Construction Co. Limited, asserting it was mistakenly drafted as mutual instead of a one-sided release from Elmara to Canada, contrary to their settlement agreement.

Elmara did not oppose the rectification.

AC Metal Fabricating Limited, a plaintiff in the broader litigation, opposed the motion, arguing the mutual release was intended or that their own mutual release with Canada already precluded Canada's future warranty claims against Elmara.

The court found that the mutual release failed to accurately record the parties' prior agreement, which intended a one-sided release from Elmara to Canada, preserving Canada's warranty rights.

The court held that the mistake was common to Canada and Elmara, or alternatively, a unilateral mistake by Canada that Elmara knew or ought to have known about, and allowing Elmara to benefit would be unconscionable.

The motion for rectification was granted.

The defendants brought a motion to remove Norton Rose Fulbright Canada LLP as lawyers of record for the plaintiff, LaSalle Electrical Contractors Inc. Norton Rose also represented the third party, Jensen Building Ltd., in this action and a related construction lien action.

The defendants argued that Norton Rose was in a conflict of interest and could misuse confidential information obtained from the third party against the defendants.

The court granted the motion, finding a potential for conflict and mischief, and ordered Norton Rose removed as counsel for the plaintiff.

A cross-motion for consolidation and waiver of the implied undertaking rule was adjourned.

Bay City Contractors (Thunder Bay) Inc. moved for partial summary judgment for $200,338.56 for work completed on a construction project.

Quinan Construction Limited counterclaimed for $285,713.24, alleging contractual breaches, delays, deficiencies, and post-termination costs.

The court granted partial summary judgment to Bay City for the undisputed amount of $200,338.56 but found a genuine issue for trial regarding Quinan's counterclaim.

Payment of the summary judgment was stayed until the counterclaim is resolved.

Costs for the motion were divided, with each party bearing their own.

The defendant brought a motion seeking directions to allow its counsel to cross-examine the plaintiff's principal on an affidavit filed in a pending motion to remove the counsel of record.

The plaintiff opposed, arguing that the defendant's counsel previously represented the principal in matrimonial proceedings and possessed confidential financial information relevant to the current construction lien action.

The court applied the conflict of interest test from MacDonald Estate v. Martin and concluded that a reasonably informed person would be concerned about the potential misuse of confidential information.

The court prohibited the counsel from conducting or assisting with the cross-examination and denied the defendant's request to appoint a case management judge.

The defendants brought motions for summary judgment seeking dismissal of the plaintiff’s construction negligence action on the basis that it was statute-barred under the two-year limitation period in the Limitations Act, 2002.

The plaintiff alleged water infiltration problems in a condominium project caused by deficiencies in an exterior acrylic stucco system supplied and installed by the defendants and designed by the architect.

The defendants argued the plaintiff knew of the loss and potential responsible parties in 2005–2006 and therefore the limitation period expired before the action was commenced in June 2008.

The court held that the discoverability issue was highly contextual and that the plaintiff’s ongoing investigation into the source of the leaks raised a genuine issue requiring trial.

Summary judgment was therefore inappropriate and the limitation issue must be determined at trial.

The defendants brought a motion seeking a reduction of security paid into court under the Construction Lien Act.

Although the moving party sought a substantial reduction from approximately $2.69 million to about $347,000, the court found that the alleged over‑security was not demonstrated to that extent and reduced the security only to $1,931,227.

The motion therefore resulted in partial success for the defendants.

In determining costs, the court considered s. 86 of the Construction Lien Act together with Rule 57 of the Rules of Civil Procedure and noted the parties had collectively incurred over $120,000 in motion costs.

The court held that while the moving party was reasonably successful and entitled to costs, the scale should remain partial indemnity and fixed costs at $15,000 payable by the plaintiff.

The defendant owner brought a motion under s. 44(5) of the Construction Lien Act seeking to reduce the amount of security posted to vacate a construction lien.

The lien claimant had registered a lien exceeding $2.6 million, largely based on delay-related claims including additional labour, overtime, and extended duration costs.

The court held that security may be reduced where it is demonstrated that the maximum possible recovery under the lien is less than the registered amount, applying a test analogous to summary judgment but without determining contested factual disputes.

The court found portions of the delay claim either non‑lienable or clearly overstated and recalculated the amounts that could plausibly be recovered as lienable claims.

The security was reduced accordingly while preserving sufficient protection for potentially valid lien components.