James de Melo

The applicant sought to be relieved of its obligation to pay interest at the contract rate of 11.2% on a prompt payment determination, arguing that its payment of funds into court as security stayed the interest clock.

The Divisional Court rejected this argument, finding that the payment into court was merely security and did not vary the terms of the determination.

The court affirmed its jurisdiction to calculate the balance owing and ordered the applicant to pay the remaining interest accrued, less the income earned on the funds held in court.

Following the dismissal of its application, the applicant sought to make further submissions regarding recent amendments to the definition of 'written notice of lien' under the Construction Act.

The Divisional Court declined the request, finding that the amendments, which came into effect after the applicant's payment obligations arose, did not apply retrospectively.

The court also declined to provide general guidance on the new amendments, noting that such guidance should be reserved for cases where the issue is material to the result.

The applicant owner sought judicial review of an adjudicator's determination ordering it to pay the respondent contractor $685,574.91 under the prompt payment regime of the Construction Act.

The owner argued the adjudicator erred by rejecting its set-off claim for delay, misinterpreting notice holdback obligations, and conducting a procedurally unfair hearing.

The Divisional Court dismissed the application, finding the adjudicator reasonably concluded the contract did not support the delay claim and correctly held that actual notice of registered liens does not trigger notice holdback obligations.

The court also found no procedural unfairness or reasonable apprehension of bias.

The moving party brought a motion to strike portions of an affidavit tendered by the responding party in support of its motion for leave to appeal an adjudicator's decision.

The court noted that the typical practice is to have motions to strike heard at the same time as the primary motion.

The court dismissed the motion without prejudice, granted the responding party leave to amend its affidavit, and set a revised timetable for the leave motion, leaving any remaining disputes about the affidavit's content to the leave panel.