John Margie

The court considered a motion by Joanne Fox to permit her spouse, Evan Kirsh, to attend continued examinations for discovery in a Construction Act action, for the purpose of assisting her counsel.

The plaintiff, Irwin Allen Design Build Inc. (IADB), opposed further attendance by Mr. Kirsh, citing alleged disruptive behaviour and negative impacts on its deponent.

The court exercised its discretion to allow Mr. Kirsh’s attendance, subject to conditions: he may attend the examination of Mr. Allen only by videoconference and may attend Ms. Fox’s examination in person or by videoconference, but must not interfere or act as a witness.

The decision balances fairness to both parties, considering Mr. Kirsh’s prior attendance, his role as a material witness, and the need to avoid disruption.

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.

Leblon Carpentry Inc. brought a motion seeking an extension of a court-ordered deadline to provide answers to undertakings from its examination for discovery, including a *nunc pro tunc* extension and further time for an outstanding undertaking.

The motion was opposed by Qi Tang, who sought to preclude Leblon from relying on the late answers.

The court dismissed Leblon's motion, finding that Leblon failed to provide a sufficient and convincing explanation for its non-compliance and did not demonstrate honest and meaningful efforts to provide responsive answers.

The court emphasized the importance of adhering to court orders, particularly in summary lien proceedings, and ruled that Leblon could not rely on the information subject to the undertakings requested by Qi Tang that was not provided by the original deadline.

Costs were awarded to Qi Tang.

The plaintiff, Magil Construction Canada Inc., brought motions seeking to vary a previous order, amend a third-party claim due to corporate amalgamation, and join several proposed third parties under the Construction Act.

The court dismissed the motion to vary the previous order, finding it unnecessary and that the plaintiff failed to meet the requirements of Rule 59.06.

However, leave was granted to amend the third-party claim to reflect the amalgamation and to join Mattina Mechanical Limited, Sola Engineering Inc., and Innocon Inc. as third parties.

The joinder of IFAB Engineering Partners Ltd. was resolved by consent.

The court rejected Innocon's arguments that the third-party claim was a nullity and that the claim against it was statute-barred, finding no undue prejudice or delay would result from the joinder.

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.

This decision addresses four motions in consolidated construction lien actions.

Lien claimants Vestacon Limited and Plan Group Inc. sought to validate their liens against properties owned by 1302207 Ontario Limited (Peter Co.) and 364 Richmond Street West Inc. (Richmond Co.), following the bankruptcy of the tenant, Arc Productions Ltd. The court declared all three Certificates of Substantial Performance (CSPs) invalid due to premature issuance and insufficient property descriptions.

Consequently, Vestacon's lien was found to be timely, having been registered within 45 days of contract completion.

The court also affirmed the validity of Vestacon's Section 19 notices to the landlords, establishing their liability.

Furthermore, Vestacon's lien was extended to include the 364 Richmond Street West property, and leave was granted to add Richmond Co. as a defendant.

For Plan Group's lien, while the CSPs were invalid, a genuine issue for trial was found regarding the exact date of last supply, leading to the dismissal of the owners' motion to declare Plan Group's lien expired.

The plaintiff, Andrzej Janik, sued two lawyers, Paul Stillman and Anthony Olszowy (represented by his estate), for breach of contract and negligence related to a construction lien action.

Stillman was the litigation lawyer, and Olszowy provided general business advice.

Motions for summary judgment were brought by Olszowy to dismiss the action against his estate, and by Janik against both lawyers.

The court found that Stillman, as the solicitor of record, failed to act with reasonable competence and diligence by not properly diarizing the lien expiry, not advising Janik of the lien's expiration or its questionable validity, and consenting to its removal without client instructions or offering alternative protective measures.

The court dismissed the action against Olszowy, finding he was not responsible for Janik's losses given his limited role and Stillman's primary duty.

Judgment was granted in favour of Janik against Stillman for the uncollected portion of a previous judgment against a third party, representing the loss of security in the property due to Stillman's negligence.

Following the dismissal of motions seeking to declare several construction liens expired under s. 37(1) of the Construction Lien Act, the court addressed costs.

The moving defendant argued no costs should be awarded due to the alleged novelty of the statutory interpretation issue, while the lien claimants sought substantial indemnity costs citing a Rule 49 offer and the defendant’s litigation conduct.

The court held the issue was not sufficiently novel to depart from the ordinary rule that costs follow the event, though the defendant’s conduct contributed to unnecessary litigation steps.

Because the plaintiffs had delivered a Rule 49 offer that achieved an equal or better result, substantial indemnity costs applied after the offer date.

Costs were fixed in specified amounts payable to each responding lien claimant.

Following the dismissal of motions seeking to declare several construction liens expired under s. 37(1) of the Construction Lien Act, the court addressed costs.

The moving defendant argued no costs should be awarded due to the alleged novelty of the statutory interpretation issue, while the lien claimants sought substantial indemnity costs citing a Rule 49 offer and the defendant’s litigation conduct.

The court held the issue was not sufficiently novel to depart from the ordinary rule that costs follow the event, though the defendant’s conduct contributed to unnecessary litigation steps.

Because the plaintiffs had delivered a Rule 49 offer that achieved an equal or better result, substantial indemnity costs applied after the offer date.

Costs were fixed in specified amounts payable to each responding lien claimant.

Two third party defendants sought security for costs against a defendant/third party claimant under Rule 56.01 of the Rules of Civil Procedure.

The court found the defendant corporation was impecunious but concluded it would be unjust to require security for costs because the third party claims were intertwined with the main action and could effectively prevent the defendant from defending the action.

In relation to the second third party, the court also refused security due to the advanced stage of the litigation and delay in bringing the motion.

Both motions for security for costs were dismissed and costs were awarded to the defendant.

The defendant developer brought a motion under s. 46 of the Construction Lien Act to declare that the plaintiff's construction lien had expired under s. 37 because the plaintiff's specific action was not set down for trial within two years.

The court dismissed the motion, finding that another lien claimant's action, which arose from the same improvement, had been set down for trial within the two-year period.

Under the Act, an action commenced by one lien claimant is an action in which all other liens may be enforced, thus protecting the plaintiff's lien from expiry.