3 total
Summary judgment granted; construction manager had no contract or trust obligations to subcontractor.
The moving defendants sought summary judgment dismissing claims for breach of contract and breach of trust arising from a construction project.
The plaintiff subcontractor alleged it had a contractual relationship with the construction manager and that trust obligations arose under the Construction Lien Act.
The court found the construction manager acted only as construction manager and not as a general contractor, and that the plaintiff’s contractual relationship was with the project owners.
As the construction manager never received funds relating to the subcontractor’s work, no trust obligations could arise.
The court concluded there was no genuine issue requiring a trial and dismissed the action against the moving defendants.
Costs fixed at $5,900 in the cause following conversion of application to action.
The court addressed costs following an earlier order converting an application into an action with terms.
The judge considered the discretionary nature of costs under s. 131(1) of the Courts of Justice Act and the factors listed in Rule 57.01(1) of the Rules of Civil Procedure.
Although successful parties are generally entitled to costs, the court found reason to depart from the general rule given the litigation history and prior failures by certain respondents to comply with court orders that delayed the matter.
Costs were ordered to be in the cause between the corporate respondents, Robert Parr, and the applicant, fixed at $5,900 all-inclusive.
A respondent who was not a moving party was held not entitled to costs.
Application converted to action due to credibility disputes and anticipated expert evidence.
Corporate respondents brought a motion under Rules 14 and 38.10 of the Rules of Civil Procedure to convert an application into an action before the application hearing.
The underlying dispute involved allegations of diversion of corporate assets, claims for $5 million in damages for conversion, punitive damages, and oppression remedies under the Business Corporations Act.
The court held that conversion was appropriate where the matter involved complex factual disputes, credibility issues, and anticipated expert evidence.
Given the magnitude of the damages claims and the likelihood of conflicting expert testimony, a full evidentiary record and viva voce evidence were required.
The court converted the application into an action and imposed procedural directions to expedite the litigation.
