Derek A. Schmuck

The appellant appealed a decision declaring that no valid Agreement of Purchase and Sale existed between a builder and a purchaser.

The builder agreed to construct a home in Welland.

The purchaser made unilateral amendments to Schedule D of the agreement (striking out "builder's samples" in six places) without the builder's knowledge or consent.

When a dispute arose over the choice of kitchen cabinet supplier, the application judge found no meeting of the minds due to the parties' fundamentally different understandings of the contract terms, particularly regarding supplier selection.

The Court of Appeal upheld the decision, finding the application judge's factual findings were entitled to deference and that the builder had acted reasonably throughout the dispute.

The appellant subcontractor appealed a decision removing its construction lien and dismissing the action against the property owner.

The motions judge found the lien was not filed within the time required under the Construction Lien Act, as the late delivery of screens was deemed a trivial act intended solely to extend the lien period.

The Divisional Court found no error of law or palpable and overriding error of fact, concluding the motions judge properly applied the law regarding whether remaining work was trivial or done in good faith.

The appeal was dismissed.

The plaintiff subcontractor brought a motion for summary judgment on its construction lien claim for $94,729.17 against the general contractor, who had posted a lien bond to vacate the lien.

The general contractor filed no responding materials, arguing instead that leave was required and that the evidentiary record was deficient under s. 17(1) of the Construction Lien Act.

The court rejected these arguments, finding that leave was granted, Rule 48.04 did not bar the motion, and the uncontradicted evidence established the timeliness and quantum of the claim.

Summary judgment was granted in favour of the plaintiff.

The plaintiff subcontractor brought a motion for summary judgment on its construction lien claim against the general contractor.

The general contractor failed to file any responding materials and relied solely on its pleadings and technical arguments.

The court granted summary judgment, finding no genuine issue requiring a trial as the general contractor had admitted the supply of services and materials and had no evidence to dispute the quantum or timeliness of the lien.

The plaintiff equipment rental company moved for summary judgment against the defendant developer for rental charges and damages related to equipment left on the defendant's site after the general contractor went bankrupt and abandoned the project.

The plaintiff advanced claims of unjust enrichment, quantum meruit, and conversion.

The court dismissed the motion, finding no evidence that the defendant used or benefited from the equipment after the contractor abandoned the site, nor any evidence that the defendant caused damage to the equipment.

Following the dismissal of the applicants' claim regarding a failed real estate transaction, the court received written submissions on costs.

The applicants argued each party should bear their own costs, while the respondents sought costs, noting the applicants' failure to accept a generous settlement offer that would have returned their deposit.

The court found the applicants' approach to the litigation patently unreasonable and awarded costs to the respondents.

After scrutinizing the respondents' bill of costs for potential overlap, the court fixed costs payable by the applicants at $27,500 inclusive of disbursements.

Trenchline Construction Inc. (TCI) brought a claim for $449,862.61 in "stand-by charges" against Trisura Guarantee Insurance Company (under a Labour & Material Payment Bond) and Unimac-United Management Corp. and Metrolinx (under a construction lien).

The court found that while TCI had a contractual entitlement to claim standby costs under the incorporated CCDC General Conditions, it failed to provide sufficient corroborating evidence to prove these costs were actually incurred.

The court also found TCI's "onsite" standby claim to be an attempt to inflate the claim, significantly detracting from the credibility of its principal witness.

Consequently, TCI's standby costs claim was denied in its entirety, both under the Bond and as lien rights.

Following the release of a decision on the merits, the successful applicant sought substantial indemnity costs of $20,209.81.

The respondent argued for no costs or, alternatively, costs fixed at $8,000.

Applying Rule 57.01(1) and the principles from Boucher, the court found the issues were not complex but were important to the applicant.

The court awarded partial indemnity costs to the applicant fixed at $15,000 inclusive of disbursements and HST.

The applicant sought a stay pending appeal of an order requiring her to discharge a certificate of pending litigation registered against a residential property.

The application judge had found no valid agreement of purchase and sale existed between the parties and ordered the applicant to discharge the CPL.

The Court of Appeal granted the stay, finding the applicant met the RJR-MacDonald test: she raised serious issues on appeal, demonstrated irreparable harm based on the property's unique custom-built nature, and the balance of convenience favoured granting the stay given the respondent's lack of evidence regarding prejudice from the CPL's continued registration.

Dew Point Insulation Systems Inc. brought a claim under the Construction Lien Act against Aqua Mechanical Contracting Ltd., Metrolinx, and Grascan Construction Ltd. for unpaid services and materials.

Aqua defaulted, and Metrolinx was discontinued.

The primary issue at trial was whether security posted by Grascan to vacate Aqua's lien could be used to satisfy Dew Point's claims, including costs and pre-judgment interest, beyond the security posted for Dew Point's own lien.

The court held that the security posted for Aqua's lien could be notionally pooled with Dew Point's lien security to satisfy Dew Point's claims, costs, and pre-judgment interest, relying on the principle that all persons having lien claims are entitled to distribution from the pooled security.

This decision addresses two cross-applications concerning the validity of an Agreement of Purchase and Sale for real property.

The court found no consensus ad idem between the parties due to uninitialed amendments made by the purchaser and differing interpretations of material terms, particularly regarding kitchen cabinetry suppliers.

Consequently, the Agreement of Purchase and Sale was declared null and void, the purchaser's request for specific performance was dismissed, and the vendor's request for an injunction against encumbrance was implicitly granted by ordering the discharge of the Certificate of Pending Litigation.

The vendor was ordered to return the deposit with interest.

The plaintiff, Keen Landscaping Inc., sued the defendant, Ann Marie Stewart, for unpaid pool installation costs.

The court previously ruled in favour of the plaintiff but identified two deficiencies requiring rectification: non-compliant patio steps and oozing glue from patio stones.

This ruling determined the costs of these rectifications.

The court found that the property's grading was altered by the pool installation, requiring a grading certification that the plaintiff failed to obtain.

The defendant's proposed rectification plan, including a complete rebuild of the patio steps and a grading certification, was largely accepted, with an adjusted cost of $21,413.50 (including HST).

This amount was credited to the defendant, reducing the balance owing to the plaintiff from $43,580.97 to $22,167.47.

Metrolinx, the owner of a construction project, moved to post the agreed basic and notice holdback amounts into court to vacate several subtrade liens and have the actions against it dismissed.

The subtrades consented to the posting but argued Metrolinx should also be required to post security for prejudgment interest and pay their costs.

The Master held that holdback is a retention obligation, not a payment obligation, and therefore does not attract prejudgment interest under the Courts of Justice Act.

However, the Master awarded partial indemnity costs to the subtrades, finding that Metrolinx unnecessarily lengthened the proceedings by aggressively defending the entirety of the subtrade claims instead of posting the holdback early in the litigation.

This is a costs ruling following a motion where the defendant Sona Construction Limited sought to reduce the amount of security posted with the court.

Sona partially succeeded in reducing the security but not to the extent requested.

Sona sought costs on a partial indemnity basis.

The plaintiff Selectra Inc. argued for no costs due to divided success and issues with the timing of concessions.

The court found the success was mixed and the matter of average complexity, ultimately making no award as to costs.

The plaintiff, Muskoka Minerals & Mining Inc., supplied sand for indoor volleyball courts and was not paid in full.

It registered a lien and sued the property owner, Gorge Holdings Inc., and the operators.

The court found Gorge Holdings Inc. contractually liable because its employee signed the supply agreement as a purchaser, actively supporting the venture.

Gorge Holdings Inc. was also deemed a "statutory owner" under the Construction Lien Act due to its interest in the premises, request for improvement, and consent/credit provided.

Judgment was granted against Gorge Holdings Inc. for the outstanding amount plus interest, and the lien was upheld.

The moving party, a defendant contractor, brought a motion under section 44 of the Construction Lien Act to reduce the amount of security posted to vacate a claim for lien registered by the responding party subcontractor.

The responding party's lien included a substantial delay claim.

The court reviewed the disputed items, including site supervisor labour, notional equipment rentals, bonding costs, and project management fees, to determine if they were properly lienable.

Finding that certain items like notional rentals, bonding costs, and work not done were not lienable or lacked a reasonable prospect of success, the court ordered the security reduced from $1,372,552.36 to $858,385.78.

Following dismissal of a motion to compel arbitration, appoint an arbitrator, and stay the action, the court determined the defendants' costs entitlement.

The successful defendants sought substantial indemnity costs based on service timing complaints, an unaccepted offer to settle, and alleged improper submissions by the plaintiff.

The court rejected those bases for elevated costs, held that the offer to settle did not justify a costs advantage, and applied the Rule 57 factors.

Partial indemnity costs were fixed at $10,000 inclusive of disbursements and HST, payable within 30 days.

The plaintiff brought a motion seeking to compel the defendants to participate in binding arbitration, appoint an arbitrator, and stay the court action pending arbitration arising from a commercial services contract.

The contract containing the arbitration clause was between the plaintiff and one defendant only, while the action also named a second defendant who was not a party to the arbitration agreement.

The court held that under s. 7 of the Arbitration Act, 1991 a party who commenced a court proceeding cannot move for a stay of that proceeding in favour of arbitration.

The court further found that compelling arbitration against only one defendant while staying the action against the other would risk multiplicity of proceedings and inconsistent results.

The motion was dismissed and the matter allowed to proceed in a single court proceeding.

The defendant City brought a motion to stay a construction lien proceeding pending its appeal of the trial judge's liability determination in a bifurcated trial.

The court dismissed the motion, finding that the liability decision was an interlocutory order under the Construction Lien Act, which cannot be appealed until the damages phase is completed.

Furthermore, the court held that even if it had jurisdiction, it would not exercise its discretion to grant a stay because the City failed to demonstrate irreparable harm and the balance of convenience favored proceeding with the scheduled damages trial.

A contractor sued a municipal owner after being terminated from a major civic construction project shortly before substantial completion.

The owner alleged the contractor was in default for failing to meet milestones and failing to comply with scheduling and change directives.

The court held that even if breaches occurred, they did not amount to a fundamental breach justifying termination, particularly where the project was approximately 95–98% complete and delay damages could be compensated in money.

The court further found the owner had compromised the consultant’s contractual role of impartiality by directing the consultant’s notice of default and failed to act in good faith under the dispute resolution provisions.

The termination was therefore wrongful and invalid.