Jeffrey Armel

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 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.