James Wayne Maclellan

The applicants, QM GP Inc. and Highpoint Environmental Services Inc., sought an initial order under the Companies' Creditors Arrangement Act and a lien regularization order.

The applicants sought protection to address acute liquidity crisis, interim financing, and relief to stabilize operations.

The court granted the initial order with certain modifications, approving interim debtor-in-possession financing, appointment of a monitor, administration and directors' charges, and a lien regularization order.

The court also granted a temporary stay on performance bond calls and certain indemnity obligations, with the Kingsdale Letter of Credit issue deferred to the comeback hearing.

The Receiver sought orders to approve a construction management contract and related financing for the Heart Lake Project, and to authorize amendments or disclaimers of pre-sale agreements for the Uptowns Project.

The court granted the relief, finding it was the best path to maximize stakeholder recovery, noting that the proposed amendments to pre-sale agreements offered homebuyers an option to retain value or claim deposits from a surety policy, and that disclaiming agreements was necessary for financing and project completion.

The court also approved sealing certain financial information to protect future marketability.

The defendants brought a motion to stay two actions commenced in Ontario, arguing that British Columbia was the more appropriate forum based on contractual choice of law and jurisdiction clauses related to a construction project.

The plaintiff opposed the motion and brought a cross-motion to compel arbitration.

The court granted the defendants' motion to stay, finding that despite Ontario having jurisdiction simpliciter, British Columbia was the forum conveniens due to the clear contractual terms and the location where the factual matters arose.

The plaintiff's cross-motion to compel arbitration was dismissed, with the court noting that the arbitrator should determine their own jurisdiction in the first instance.

Costs were awarded to the successful defendants.

Zurich, the surety for the insolvent general contractor Bondfield, brought a motion to intervene as a party in a construction lien reference.

Zurich sought to participate in a vetting committee for the distribution of the owner's holdback among the timely lien claimants.

The court granted the motion, finding that Zurich had a direct interest in the holdback because it had made significant holdback advances to the major electrical and mechanical trades and had taken partial assignments of their lien rights.

The court ordered the timely claimants to pay Zurich's costs of $30,000.

Hazleton Development Corporation, an insolvent company constructing a condominium complex, applied for an initial order under the Companies’ Creditors Arrangement Act (CCAA).

The application sought a stay of proceedings, approval of Grant Thornton Limited as Monitor, permission for pre-filing payments to critical trades, approval of a Debtor-in-Possession (DIP) financing facility, an administration charge, and a directors’ charge.

The court granted the initial order, finding the company met the CCAA's statutory requirements, the stay was appropriate for a 10-day period, the Monitor was qualified, pre-filing payments were beneficial to stakeholders, the DIP facility was essential and reasonably necessary, and both the administration and directors’ charges were warranted.

The order was granted without prejudice to the secured creditors' rights for a subsequent hearing.

Trenchline Construction Inc. (TCI) brought a claim for $449,862.61 in "stand-by charges" against Trisura Guarantee Insurance Company (under a Labour & Material Payment Bond) and Unimac-United Management Corp. and Metrolinx (under a construction lien).

The court found that while TCI had a contractual entitlement to claim standby costs under the incorporated CCDC General Conditions, it failed to provide sufficient corroborating evidence to prove these costs were actually incurred.

The court also found TCI's "onsite" standby claim to be an attempt to inflate the claim, significantly detracting from the credibility of its principal witness.

Consequently, TCI's standby costs claim was denied in its entirety, both under the Bond and as lien rights.

This motion concerned undertakings and refusals in cross-examinations related to a charging order sought by BPR Litigation Lawyers against bond funds held for Unimac Group Ltd. Trisura Guarantee Insurance Company, an interested third party, challenged the quantum of the charging order and the extent of solicitor-client privilege claimed by Unimac/BPR.

The court determined that Trisura was entitled to question the quantum of the charging order and that privilege did not extend to descriptions of work performed in work-in-progress reports, but did protect confidential solicitor-client communications and business judgment decisions.

Trisura Guarantee Insurance Company brought a motion for a declaration that its perfected security interest under the Personal Property Security Act (PPSA) had priority over any solicitor's charging order that might be obtained by BPR Litigation Lawyers, the former lawyers for Unimac Group Ltd. The court dismissed the motion, finding that the PPSA does not apply to solicitors' charging orders.

Furthermore, the court held that the common law 'first in time' rule does not apply to solicitors' charging orders due to their equitable nature and purpose.

Trisura's indemnity agreement with Unimac did not preclude BPR from seeking a charging order against funds recovered or preserved through their instrumentality.

This decision addresses two motions brought by Trisura Guarantee Insurance Company in the context of construction lien proceedings.

The first motion sought to set aside a charging order obtained by BPR Litigation Lawyers against a construction lien bond without notice to Trisura.

The second motion sought leave to pursue exoneration and payment out of the bond.

The court found that Trisura did not require leave to challenge the charging order, had standing due to its direct proprietary and economic interests under an Indemnity Agreement, and consequently, the charging order was set aside for lack of notice.

However, the court denied Trisura leave to bring its motion for exoneration within the construction lien actions, determining that such a claim, based on a separate Indemnity Agreement, did not expedite the resolution of the lien issues and was already the subject of a separate action in Toronto, posing a risk of inconsistent findings.

The plaintiff, Walsh Construction/Bondfield Partnership, brought a motion to refer its proceeding against Chartis Insurance Company of Canada to Master Albert, who was already hearing related construction lien matters concerning the same project.

The court considered whether the litigation between the general contractor and the performance bond issuer should be heard by the same Master to avoid a multiplicity of proceedings and inconsistent findings.

The motion was granted, finding significant overlap in factual and legal issues and no undue prejudice to the defendant.

DCM Erectors Inc. brought a motion to stay enforcement of an unopposed judgment, remove opposing counsel for conflict of interest, and set aside the judgment in a complex construction lien dispute.

The Master dismissed the requests to remove counsel and set aside the judgment, finding no impropriety in the joint representation of sub-trades and the surety.

However, the Master granted a stay of enforcement of the personal judgment against DCM, finding it would be unjust to allow the surety to enforce assigned sub-trade debts against DCM while simultaneously resisting payment to DCM on its own lien claim.

The appellants appealed an order of the Superior Court of Justice regarding their right to recovery under a bond.

The Court of Appeal held that naming the appellants on the bond did not give them an independent right to recovery under their lending agreements.

The court declined to interfere with the motion judge's interpretation of the inter-lender agreement and dismissed the appeals with costs.