Jay Nathwani

The Chalmers defendants moved for a declaration that A3 Construction Inc.'s construction lien had expired and for an order vacating the lien and certificate of action from title.

A3 opposed and cross-moved for a declaration that its action was set down for trial before the expiry of the limitation period.

The court found that A3 took sufficient steps to set the action down for trial within the required time by submitting the trial record through the Civil Submissions Online Portal before the deadline, even though the record was initially rejected for procedural deficiencies.

The court dismissed the Chalmers' motion and granted A3's cross-motion, declaring the action set down for trial as of June 6, 2023.

The court considered whether a construction lien action was properly set down for trial within the two-year period required by section 37(1) of the Construction Act, despite the use of the wrong court file number and style of cause in the trial record.

The defendant, MP Lundy Construction Inc., sought a declaration that the lien had expired and the return of security.

The plaintiff, KE Electrical Ltd., cross-moved to amend the court file number nunc pro tunc.

The court found the error to be an irregularity curable under Rule 2.01 of the Rules of Civil Procedure, relying on the Court of Appeal’s reasoning in Foran.

The defendant’s motion was dismissed and the plaintiff’s cross-motion was granted.

The appellant, MGW-Homes Design Inc., appealed an order vacating a writ of enforcement related to an adjudicator's determination under the Construction Act.

The primary issue was whether the Court of Appeal had jurisdiction to hear the appeal, which depended on whether the order constituted a "judgment" under s. 71(1) of the Construction Act, in which case the appeal would lie to the Divisional Court.

The Court of Appeal, interpreting "judgment" broadly consistent with prior case law and the Act's purpose of efficiency, found that the order was a "judgment" under s. 71(1).

Consequently, the appeal was dismissed for lack of jurisdiction, as it properly belonged in the Divisional Court.

The plaintiff, H.R. Doornekamp Construction Ltd., and the defendant, Attorney General of Canada, both brought motions for summary judgment concerning a construction contract dispute.

Doornekamp sought partial summary judgment on liability for additional concrete work, arguing that a specific contract clause (GC6.4.3) constituted a "separate code" for payment, bypassing general dispute resolution (GC8).

Canada sought dismissal of Doornekamp's claim, arguing it was extinguished due to non-compliance with GC8 notice provisions, or alternatively, that genuine issues required a trial regarding the applicability of GC6.4.3 and the quantity of work.

The court found genuine issues requiring a trial regarding whether Doornekamp properly invoked GC6.4.3 and whether Canada's conduct affected Doornekamp's rights, particularly concerning the duty of honest performance and potential variation of contract terms by conduct.

Both motions for summary judgment were dismissed, with the court emphasizing the rarity and challenges of partial summary judgment.

Ivan Cavric appealed a Master's order that required him to answer questions during an examination in aid of execution and pay personal costs.

The appeal challenged the Master's decision on the scope and relevance of questions, whether certain questions had already been answered, and the propriety of awarding costs personally against Cavric, a non-party to the original judgment.

The court dismissed the appeal, finding no palpable and overriding error in the Master's order.

It held that the context of the dispute provided adequate notice for personal costs against Cavric, despite the Bank's motion seeking costs against "the Defendant."

The general contractor, Brookfield, sought leave under section 67 of the Construction Lien Act to bring a motion for partial summary judgment.

The motion aimed to strike the delay portion of the subcontractor Limen JV's lien claim, alleging failure to provide proper notice of delay as required by contract.

Limen JV opposed, arguing that complex factual and credibility issues necessitated a full trial and that a partial summary judgment motion would cause delay.

The Master granted leave, finding that the proposed motion would likely expedite the resolution of the dispute by narrowing the issues for trial, particularly regarding the notice of delay claim, and was consistent with the Hryniuk objectives for summary judgment.

The plaintiff brought a motion for leave to amend its statement of claim to substitute two corporate defendants after discovering that the originally named defendant corporation never existed.

The proposed substitutions were sought on the basis of misnomer under Rules 5.04(2) and 26.01 of the Rules of Civil Procedure.

The court held that the circumstances constituted misnomer because the litigation was clearly directed at corporations controlled by the same principal, and a reasonable reader would understand that the claim was intended for those entities.

The court further found no non‑compensable prejudice, as the proposed defendants had knowledge of the claim and had effectively defended the action from the outset.

Leave to amend and substitute the proper corporate defendants was granted, and the substituted defendants were ordered to satisfy a prior interlocutory costs order.

Following reasons on several construction lien motions relating to a subway station project, the successful lien claimant sought partial indemnity costs exceeding $82,000.

The responding parties challenged the amount as excessive and attempted to dissect the bill of costs without producing their own costs outlines as required under Rule 57.01(6) of the Rules of Civil Procedure.

The court emphasized that costs fixing is not an item-by-item assessment and that reasonable expectation and indemnity principles govern the exercise.

The absence of a costs outline from the objecting party undermined its argument for reductions.

The court fixed costs largely as claimed, awarding partial indemnity costs plus additional costs for preparing submissions.

The defendant, Atomic Energy of Canada Limited, brought a motion for summary judgment to dismiss the plaintiff's claims for breach of duty of fairness, defamation, negligence, and fraudulent concealment arising from a tendering process.

The court dismissed the motion for summary judgment regarding the duty of fairness and limitation period issues, finding that the voluminous and conflicting evidence required a full trial with viva voce evidence.

However, the court granted summary judgment dismissing the defamation claim, as the plaintiff failed to provide direct evidence of the alleged defamatory statements.