Jeffrey Aaron Armel

The appellant contractor appealed a trial decision awarding prejudgment interest at the Courts of Justice Act rate rather than the higher contractual rate.

The respondent homeowners cross-appealed the trial judge's award of damages for two change orders and the refusal to award damages for deficiencies covered by a Licence Appeal Tribunal (LAT) settlement.

The Divisional Court dismissed both the appeal and cross-appeal.

The court found the trial judge did not err in the interest award because the contractor had withdrawn its claim for the contractual rate at trial.

The court also upheld the trial judge's findings that the change orders were payable as extras and that the LAT had jurisdiction to enforce the settlement regarding deficiencies.

This decision addresses costs and pre-judgment interest following an eight-day trial involving two separate actions.

In the first action, Sjostrom Sheet Metal Ltd.'s lien and contract claims against Geo A. Kelson Company Limited were dismissed, leading to Kelson being awarded costs.

In the second action, A. Amar and Associates Ltd. successfully proved its contract claim against Kelson, resulting in Amar being awarded judgment and costs.

The court fixed Kelson's costs against Sjostrom at $123,270.92 and Amar's costs against Kelson at $173,025.17.

Pre-judgment interest for Amar was set from the date its statement of claim was issued, emphasizing that issues are framed by pleadings.

The decision applied principles of proportionality and offers to settle, awarding substantial indemnity costs from the date of relevant offers.

Two actions arose from a construction project where Kelson subcontracted Amar for sheet metal work, and Amar sub-subcontracted Sjostrom for labour.

Sjostrom walked off the job due to non-payment by Amar.

Kelson then directly engaged Sjostrom to complete the work and issued a change order reducing Amar's contract price.

Sjostrom claimed unpaid amounts from Kelson, while Amar claimed the unpaid balance of its subcontract.

The court found that Kelson and Sjostrom formed a direct oral contract, but Sjostrom failed to prove its claimed hours and its action was dismissed.

The court also found that the change order removed the remaining labour from Amar's scope of work, and Kelson breached its subcontract with Amar by non-payment.

Amar was awarded $209,737.88.

The appellant, a mortgagee, appealed a motion judge's decision that granted priority to construction lien claimants over his registered third mortgage.

The Court of Appeal dismissed the appeal, affirming that the advances made by the mortgagee did not fall within the exceptions of s. 78(2) or s. 78(6) of the Construction Act.

The court held that advances must be "made in respect of" the mortgage and the intention to secure financing must operate prospectively to gain priority over liens.

The decision reinforces the general principle of priority for lien claimants and the onus on mortgagees to clearly fall within statutory exceptions.

The receiver brought a motion for directions to determine whether an appeal from a priority dispute order in a receivership lies to the Court of Appeal under the Bankruptcy and Insolvency Act or to the Divisional Court under the Construction Act.

The Court of Appeal held that because the motion judge's order was granted in reliance on jurisdiction under the Bankruptcy and Insolvency Act, specifically a receiver's application for directions under s. 249, the appeal route is to the Court of Appeal.

The Receiver brought a motion for directions to determine whether the Court of Appeal or the Divisional Court has jurisdiction over an appeal concerning a priority dispute between registered lien claimants and a registered mortgage in a receivership.

The motions judge held that a single judge of the Court of Appeal lacks jurisdiction to decide whether an appeal lies within the court's jurisdiction, as this must be decided by a three-judge panel.

The motion was adjourned to be heard by a panel.

This decision addresses costs arising from the dismissal of two actions by Nanak Homes Inc. for delay.

The court found Nanak's conduct reprehensible due to significant, unexplained delays and failure to advance litigation, which warranted substantial indemnity costs.

The court also granted Kamco an indemnity against Nanak for third-party costs, concluding that Kamco reasonably joined third parties given Nanak's unparticularized claims.

Claims for non-party costs against LawPRO were dismissed as neither the "person of straw" test nor abuse of process was established.

Various defendants and third parties were awarded costs against Nanak, totaling $139,155.24.

This motion, initiated by the Receiver, determined competing priorities under s.78 of the Construction Act between construction lien claimants (represented by Maxion Management Services Inc.) and a third-ranking mortgage held by Donald Dal Bianco.

The court found that Dal Bianco's mortgage, registered after the first lien arose and securing funds advanced between 2012 and 2015, did not qualify for priority as a "subsequent mortgage" under s.78(6) because the advances were not made "in respect of that mortgage." Furthermore, it was not a "building mortgage" under s.78(2) as it did not involve an intention to secure future financing.

The court emphasized the general priority of lien claimants and the mortgagee's burden to prove exceptions.

Consequently, the lien claimants were granted priority over the third mortgage.

The defendants moved to dismiss the plaintiff's two construction defect actions for delay.

The actions were commenced in 2011 and 2012 but had not progressed to discoveries.

The plaintiff's former counsel claimed a 'mental block' prevented him from advancing the files, and the plaintiff's principal claimed ignorance of the delay.

The court found the delay was inordinate and inexcusable, noting the plaintiff's principal failed to monitor the litigation.

The court also found actual prejudice to the defendants, including the death of a key witness.

The motions were granted and the actions dismissed.

Wolseley Canada Inc. sought summary judgment against Linda Scheffer-Côté for $64,517.33 based on an alleged personal guarantee of her husband's company's debt.

The guarantee document was lost.

The court found no genuine issue requiring a trial, as Wolseley failed to prove, on a balance of probabilities, that Ms. Scheffer-Côté signed a guarantee or its specific terms.

The motion for summary judgment was dismissed, and the action against Ms. Scheffer-Côté was dismissed.

The defendant brought an unsuccessful motion for summary judgment to dismiss the plaintiff's multi-million dollar construction delay claim.

The court determined that the summary judgment motion was a bold and risky tactical strategy in a complex case where a trial was inevitable.

The plaintiff was awarded partial indemnity costs for the main summary judgment motion and the related leave motion, while the defendant was awarded costs for a successful production motion, resulting in a net costs award of $145,878.62 payable to the plaintiff.

The defendant general contractor brought a motion for summary judgment to dismiss the plaintiff subcontractor's $11.1 million delay claim, arguing the plaintiff failed to provide strict contractual notice of the delay.

The plaintiff argued that the defendant had actual notice and that strict compliance was not required given the surrounding circumstances.

The court dismissed the motion, finding that the issues of notice, credibility regarding backdated letters, and the complex factual matrix of the construction delay raised genuine issues requiring a full trial.

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.

Limen Group Ltd. brought a motion to strike out lien claims registered by Aluma Systems Inc. and Scott Forest Products Ltd., alleging the liens were registered against the wrong premises.

Limen argued the improved lands were confined to PIN 21219-0161, while Aluma and Scott registered against adjacent PINS 21219-0159 and 21219-0160.

The court, treating the motion akin to summary judgment, found genuine issues of fact requiring a trial, including whether the adjacent PINS were part of the "improved premises" or "lands enjoyed therewith" under the Construction Lien Act.

The motion to discharge the lien claims was dismissed.

The respondent contractor entered into a construction contract with the appellant to build management offices.

The contractor advanced a claim for extras due to delays.

The application judge ordered the Project Engineer to consider a portion of the claim ($1,437,976), finding the contractor provided sufficient notice under the contract.

The Court of Appeal allowed the appeal, holding that the application judge committed an extricable error of law by interpreting the contractual provision in isolation.

Read as a whole, the contract required detailed information to support a claim for extras, which the contractor failed to provide.

The application was dismissed and the claim for extra payment was declared barred.

The defendants requested an adjournment of an upcoming trial after their previous counsel was removed from the record for non-payment of a retainer.

One defendant also sought leave under Rule 48.04(1) to bring a summary judgment motion based on a limitation period defence.

The court dismissed the request for leave, noting the limitation defence had been pleaded from the outset and the matter was already set for trial.

The court also dismissed the adjournment request, drawing an adverse inference from the defendants' failure to file evidence of prejudice, and ordered the trial to proceed as scheduled.

The moving defendants sought to discharge a subcontractor's lien as expired and to recover the bond posted to vacate the lien.

The court held that the deemed completion formula in s. 2(3) of the Construction Lien Act applies to contractors' liens, not subcontractors' liens.

On the facts, the installation of two spandrel glass panels in January 2013 was new subcontract work, not trivial deficiency repair or improper bootstrapping, and therefore constituted the last supply.

The lien was preserved within 45 days and the motion was dismissed.

The appellant appealed a summary judgment that dismissed its entire claim, arguing the motion judge failed to address an alternative claim for unjust enrichment.

The Court of Appeal refused to entertain the argument because it was not raised in the factum and was advanced without notice to the respondents.

The appeal was dismissed for the reasons provided by the motion judge, with costs awarded to the respondents.

The moving defendants sought summary judgment dismissing claims for breach of contract and breach of trust arising from a construction project.

The plaintiff subcontractor alleged it had a contractual relationship with the construction manager and that trust obligations arose under the Construction Lien Act.

The court found the construction manager acted only as construction manager and not as a general contractor, and that the plaintiff’s contractual relationship was with the project owners.

As the construction manager never received funds relating to the subcontractor’s work, no trust obligations could arise.

The court concluded there was no genuine issue requiring a trial and dismissed the action against the moving defendants.

Following a successful construction lien trial in which the plaintiff recovered unpaid accounts and defeated the defendant’s set‑off and counterclaim, the court determined costs of the actions and reference under the Construction Lien Act.

The litigation had become complex due largely to the defendant’s conduct, including repeated procedural defaults, unsuccessful motions and appeals, and failure to comply with court orders, which significantly lengthened the proceeding.

The court considered the factors under Rule 57.01, the plaintiff’s Rule 49 offer to settle, proportionality, and the principle of indemnification.

Finding the defendant overwhelmingly responsible for the escalation of costs and noting that the plaintiff had recovered more than double its settlement offer, the court awarded partial indemnity costs up to the offer date and substantial indemnity costs thereafter.

Costs of $78,107.90 were fixed in favour of the plaintiff.