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.

The plaintiff in a construction lien action brought a motion for leave to amend its Statement of Claim to plead restitution unjust enrichment and for leave to file a document brief at trial.

The court denied leave to amend, finding that the proposed amendments were legally untenable because the Construction Lien Act prohibits joining non-contractual claims, such as pure restitution unjust enrichment, in a lien action.

However, the court granted the plaintiff leave to file its document brief at trial, as the documents were potentially relevant and any prejudice from late service was mitigated by a trial adjournment.

Costs of $7,500 were awarded to the responding party.

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.

Metrolinx brought a motion to quash Unimac's application for judicial review of a security for costs order made by a Master in a construction lien action.

Unimac alleged procedural unfairness based on communications between the Master and Metrolinx's counsel, and errors in the Master's treatment of evidence.

The Divisional Court found the communication complaints to be utterly devoid of merit and the evidentiary complaints to be matters for an appeal, not judicial review.

Since the Construction Lien Act prohibits appeals of interlocutory orders, the court held that the judicial review application was an abuse of process attempting to circumvent this prohibition.

The motion to quash was granted.

The appellant construction company appealed the dismissal of its claims for unjust enrichment and breach of trust under the Construction Lien Act.

The appellant had sought funds from a letter of credit provided by a developer to a municipality after the developer failed to pay for constructed services.

The Court of Appeal dismissed the appeal, agreeing with the reasons of the motion judge.