Gregory D. Hersen

In a complex mega-litigation concerning the Union Station construction project, Metrolinx, as a third party, brought a motion for particulars against the City of Toronto's amended third-party claim.

Metrolinx sought more specific details, particularly regarding the itemization and quantification of damages, arguing it needed this information to plead its defence and assess its exposure for mediation.

The City argued that the requested information constituted evidence, not particulars, and would be provided through expert reports during discovery.

The court dismissed Metrolinx's motion, holding that the City's pleading provided sufficient material facts for Metrolinx to plead, and that detailed quantification of damages and evidence of specific incidents were matters for discovery, not the pleading stage, especially in complex litigation.

This case conference endorsement outlines procedural progress in a complex, multi-party construction litigation involving Carillion Construction Inc., the City of Toronto, and NORR Limited, among others.

The court addressed the schedule for executive discoveries, ruling that they must proceed as planned, contrary to the City's submission.

It also confirmed the mediation schedule for March-April 2019, involving various claimants and insurers.

Further directions were given regarding documentary production by subcontractors and the City's amended third-party claim against Metrolinx, setting deadlines for Metrolinx's response or motion.

This judgment addresses the lienability of equipment repair services and materials supplied by Toromont Industries Ltd. and Val Rita Tire Sales Ltd. to 450477 Ontario Limited o/a Chartrand Equipment, a general contractor for a remote gold mine project.

BDO Canada Limited, as Chartrand's receiver, disputed these construction lien claims.

The court applied a "functional nexus" test, focusing on whether the services and materials were necessary for the project's completion and benefited all contractors, rather than a strict "consumption" theory or geographical location.

Given the extreme wear and tear on equipment and the extraordinary commitment required from the suppliers due to the project's nature and remoteness, the court found both Toromont and Val Rita's claims entirely lienable.

The court also clarified that the existence of rights under the Repair and Storage Liens Act (RSLA) does not automatically preclude claims under the Construction Lien Act (CLA) unless an election to enforce RSLA rights has been proven, which the receiver failed to do.