Gerry Genge

The plaintiffs in a construction defect action brought a mid-trial motion for leave to file additional and supplemental expert reports.

The plaintiffs sought to introduce a new structural engineering expert to address an allegation of bias raised against their original expert shortly before trial, and to file a supplemental report addressing newly discovered cracks.

The court dismissed the motion, finding that granting leave would cause undue delay and prejudice to the defendants, who would not have sufficient time to obtain responding reports before the trial resumed.

The court also noted that the plaintiffs failed to provide an adequate explanation for the delay in seeking leave.

The Applicant condominium corporation appealed Tarion's decision to disallow a claim for water penetration in the building's common elements.

Tarion argued the claim was reported outside the two-year warranty period and was barred by a release signed by the Applicant and the builder.

The Licence Appeal Tribunal found that notice of the water penetration was provided within the warranty period through unit owner forms and the performance audit.

The Tribunal also held that the release was unenforceable due to ambiguity and did not cover the water penetration claim.

Finding that the building envelope was defective and allowed water ingress, the Tribunal ordered Tarion to ensure specific remedial work is completed.