Irwin Ozier

The moving party sought leave to appeal the order of McCarthy J. dated October 17, 2024.

The Divisional Court dismissed the motion for leave to appeal in writing.

Costs were awarded to the responding parties in the all-inclusive amount of $3,000.

This motion concerned the proper preservation of construction liens, specifically whether the lien claimants' rights were governed by the "old" 45-day period under the Construction Lien Act or the "new" 60-day period under the Construction Act.

The determination hinged on the interpretation of the Act's transition provisions, which apply if a contract for improvement or a procurement process was commenced by the owner before July 1, 2018.

The court analyzed whether certain corporate entities, which had early involvement in the project but did not hold legal title to the premises before the critical date, qualified as "owners" under the Act.

Applying corporate law principles, the court found that these entities, despite their interest in the project, did not possess a lienable interest in the land and thus were not "owners" for the purpose of triggering the old Act's transition rules.

Consequently, the new 60-day preservation period applied, and the liens were found to be properly preserved.

The non-party contractor's motion for a declaration that the liens had expired was dismissed.

The plaintiff brought a motion for default judgment against the defendants for unpaid plumbing materials.

The court granted judgment for breach of contract and on a personal guarantee in the amount of $96,569.22, as the facts in the statement of claim were deemed admitted.

However, the court dismissed the plaintiff's claims for breach of trust under the Construction Lien Act, finding that the statement of claim lacked sufficient material facts to establish that the materials were supplied to a known improvement or that the defendants had misappropriated trust funds.

Vipond Inc. successfully moved for summary judgment and subsequently sought costs and interest.

The court determined that Bondfield Construction Company Limited and Fortis Electric Ltd. were jointly liable for partial indemnity non-motion costs, with Bondfield solely liable for substantial indemnity motion costs due to its unreasonable conduct and failure to accept a reasonable settlement offer.

The court also awarded prejudgment interest at the Courts of Justice Act rate of 0.8% and post-judgment interest at 3%, rejecting higher contractual rates due to lack of evidence.

The applicant was injured in a motor vehicle accident and received weekly income benefits.

The insurer claimed the parties reached a final settlement of the applicant's entitlement to weekly income benefits for $8,000, and relied on a signed release.

The applicant argued the payment was only an advance on one year of benefits.

The arbitrator found that there was no meeting of the minds between the parties regarding the nature of the payment and the release was vitiated by mistake.

The preliminary issue was resolved in favour of the applicant, allowing her to proceed to arbitration on her claim for weekly income benefits.