Jeremy Sacks

The appellant appealed a summary judgment decision and the associated award of substantial indemnity costs.

The Court of Appeal upheld the summary judgment, finding no error in the motion judge's findings of fact.

However, the Court granted leave to appeal costs and substituted an award of partial indemnity costs, as the parties had not made submissions on costs and there was no basis for substantial indemnity costs.

The appeal was otherwise dismissed with costs to the respondents.

The plaintiff subcontractor brought a motion for summary judgment against the individual defendants for breach of trust under the Construction Lien Act.

The corporate contractor had failed to pay the plaintiff for completed flooring work despite receiving funds from the owners and swearing a statutory declaration that all sub-trades had been paid.

The court found a breach of trust occurred and held two of the individual defendants personally liable under s. 13(1) of the Act, finding they had effective control of the corporation and acquiesced in the breach.

The action against a third individual defendant, an employee, was dismissed.