Howard Wise

CS Capital Limited, a secured creditor and mortgagee, brought a motion seeking a declaration that its mortgage had priority over construction lien claims on a property.

The court dismissed the motion, finding that the mortgage was not registered prior to the time the first lien arose in respect of the overall improvement project.

Furthermore, the court determined that the mortgage was a collateral mortgage securing a guarantee of a separate debt, and therefore no "advance" was made in respect of it for the purposes of priority under the Construction Act.

The appellants, a group of subcontractors and a bank, appealed an application judge's decision that rescission of surety bonds might be possible even if it affects innocent third parties.

The bonds were issued by Zurich Insurance Company Ltd. for a large construction project, but Zurich later discovered alleged fraudulent misrepresentations and collusion that induced it to issue the bonds.

The appellants sought a declaration that rescission was unavailable as a matter of law due to the involvement of innocent third parties.

The Court of Appeal dismissed the appeal, affirming that prejudice to third parties is not an absolute bar to rescission, especially in cases of fraudulent misrepresentation, and that such a determination requires a full factual record at trial.

The Bondfield Group, a major construction company, sought CCAA protection due to insolvency, over $1 billion in active contracts, and over 200 lawsuits.

The application was unopposed and resulted from extensive stakeholder negotiations.

The court granted an initial order for CCAA protection, including a stay of proceedings, approval of a tailored $8 million Debtor-in-Possession (DIP) facility funded by Zurich Insurance, an Administration Charge for professional fees, and a Directors' Charge for $3 million (excluding John Aquino).

The court emphasized the public interest in completing critical infrastructure projects and the preference for CCAA over receivership to preserve enterprise value.

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 applicant, Covanta, brought an application to set aside an arbitrator's decision to join two subcontractors to an ongoing arbitration between Covanta and the general contractor.

The arbitrator had joined the subcontractors under Article 17(5) of the UNCITRAL Arbitration Rules.

Covanta argued the arbitrator exceeded his jurisdiction because the subcontractors were not parties to the arbitration agreement.

The Superior Court of Justice held that the arbitrator's decision was jurisdictional in nature and subject to review on a standard of correctness.

The Court found that the subcontractors were not parties to the arbitration agreement, as the subcontract did not properly incorporate the arbitration clause by reference.

The Court set aside the arbitrator's ruling and awarded costs of $50,000 to the applicant.

Following a summary judgment decision awarding damages for conversion, the plaintiff requested clarification regarding unresolved claims for unjust enrichment and punitive damages.

The court held that the unjust enrichment claim had been pleaded only as an alternative to conversion and therefore did not require adjudication once conversion was established.

The court acknowledged that the prior reasons failed to address the punitive damages claim and considered it in this supplementary endorsement.

It concluded that the defendants’ conduct did not meet the exceptional threshold required for punitive damages.

The claim for punitive damages was therefore dismissed.

The plaintiff subcontractor brought a motion for summary judgment against the defendant property owner and new general contractor for the tort of conversion.

After the original general contractor became insolvent, the plaintiff sought to remove its custom-built equipment from the construction site.

The defendants refused access, claiming the equipment had been paid for under the original contract.

The court found that title to the equipment never passed to the defendants and their refusal to allow the plaintiff to retrieve it constituted conversion.

Summary judgment was granted and damages were awarded based on the defendants' previous counter-offer to purchase the equipment.