Heather L. Acton

The moving party, a mechanical subcontractor, sought compensation for storage and handling costs of mechanical equipment retained after a construction project went into receivership.

The court found that the moving party met the broad definition of a 'storer' under the Repair and Storage Liens Act, as there was an understanding it would be paid for reasonable storage costs.

The court awarded storage costs at a rate of $82.19 per day from the date of the receivership appointment, but denied claims for the cost of installing a security gate and legal costs under the Act.

A subsequent lien claimant brought a motion to vary an interim report that directed the distribution of trust funds to original lien claimants.

The moving party sought to attach funds payable to its contractor to satisfy its own subsequent liens.

The court declined to vary the interim report, finding that the settlement agreement among the original lien claimants was valid.

However, the court ordered that the funds received by the contractor be impressed with a trust in favour of the moving party and other subtrades, and directed the contractor to pay 10% of the received funds to the moving party pursuant to a prior agreement.

The plaintiff lien claimants brought a motion for judgment following the defendants' default on a settlement agreement in a construction lien reference.

The first mortgagee, Pillar, sought the return of funds it had advanced that were held in trust by plaintiff's counsel.

The Master granted judgment to the lien claimants, finding they were entitled to enforce the settlement agreement upon default.

The Master dismissed Pillar's claim to the trust funds, holding that the funds were advanced to support the settlement without any escrow agreement in Pillar's favour and were therefore available to satisfy the judgment.

The plaintiffs sued the defendant engineers for professional negligence regarding a foundation design.

The defendants moved for summary judgment based on the expiry of the one-year limitation period under the Professional Engineers Act.

The motion judge dismissed the summary judgment motion, finding a genuine issue for trial regarding when the plaintiffs discovered the material facts, but simultaneously granted the plaintiffs' cross-motion to extend the limitation period.

The Court of Appeal allowed the defendants' appeal, holding that the order extending the limitation period was a final order and that the motion judge erred by resolving the limitation extension issue while acknowledging a genuine issue for trial existed regarding the plaintiffs' knowledge of the facts.

The appellants, including the builder and contractors, appealed a trial judgment awarding damages to the respondent condominium corporation for structural deficiencies in a block back-up wall.

The appellants argued the action was barred by res judicata, issue estoppel, and the six-year limitation period, and challenged the findings of breach of warranty and negligence.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the structural defects could not have been discovered earlier with reasonable diligence, and that the warranty clause, interpreted contra proferentem, did not limit claims to one year.

The damages assessment was also upheld.

Appeals and cross-appeals arising from a lengthy construction-defect trial concerning premature deterioration of residential concrete foundations caused by defective concrete supplied for homes built in Eastern Ontario.

The principal dispute on appeal concerned whether the trial judge erred in accepting the theory that Type C fly ash supplied by the cement manufacturer caused the failure, rather than the aggregate and water-content theory advanced by the manufacturer.

The court upheld the trial judge’s negligence findings against both the concrete supplier and the cement manufacturer, rejected allegations of bias and procedural unfairness, and dismissed the supplier’s claim for full indemnity.

The court also upheld the trial costs ruling requiring the manufacturer to bear 90% of costs, while varying the judgment only to reflect settlements regarding detached garage damages and prejudgment interest.

Homeowners and the Ontario New Home Warranty Program brought actions against a concrete supplier (Bertrand) and a cement manufacturer (Lafarge) for defective concrete foundations caused by the introduction of fly ash.

The trial judge found Lafarge 80% liable and Bertrand 20% liable in negligence for failing to conduct adequate testing.

Lafarge appealed the liability findings and the costs award (which ordered Lafarge to pay 90% of costs due to its conduct at trial).

Bertrand cross-appealed seeking full indemnity.

The Court of Appeal dismissed the appeals and cross-appeals, upholding the trial judge's findings on liability, apportionment, and costs, while varying the judgment slightly to reflect settlements reached during the appeal regarding prejudgment interest and one homeowner's garage.

The appellant appealed an order requiring him to re-attend and complete an examination for discovery as Pontiac's representative.

The court held that Rule 31.03(2) did not apply because the appellant was not an officer, director or employee of Pontiac.

His prior voluntary attendance did not amount to a waiver of his right not to attend.

The appeal was allowed, the motion order was set aside, and the motion was dismissed with costs.