J. Siemon

The defendant 35 Mercer Limited brought a motion to reduce the construction lien of the plaintiff Urban Electrical Contractors (UEC) by $4,333,708.96.

Prior to the hearing, Mercer, UEC, and Urban Integrated Group Inc. (UIG) settled the motion on terms reducing UEC's lien security by $3,231,464.75.

Subsequently, Mercer and UEC reached a separate settlement to fully discharge UEC's lien and return all security.

However, UIG opposed the full return of security because UIG's own liens had been vacated with reduced security that accounted for UEC's lien security already posted.

The court held that security for one lien cannot be returned without considering other lien claimants affected by that return, and ordered reduction only to the extent of UIG's consent.

The court also declined to award costs, finding the parties had settled the motion without judicial intervention on the merits.

This motion, part of a larger reference concerning the Nobu Residences condominium complex, addressed the application of the transition provisions in section 87.3 of the Construction Act.

The core issue was whether the former Construction Lien Act (CLA) or the current Construction Act applied to the improvement and associated liens, which directly impacted lien timeliness.

The owner, 35 Mercer Limited, the contractor, Urban Integrated Group Inc., and a lien claimant, Brunco Insulation Ltd., argued for the application of the CLA, while Desco Plumbing and Heating Supply Inc. contended the current Construction Act should apply.

The court found that the CLA continues to apply to the improvement and all liens arising from it, based on evidence that a procurement process for the improvement commenced before July 1, 2018.

The court rejected arguments that the owner's affidavit was deficient, that ex parte vacating orders were binding, that the onus to provide transition dates was "murky," or that project delays like the COVID-19 pandemic should influence the application of section 87.3.

Wessuc Inc. sued Todd Brothers Contracting Limited and The Guarantee Company of North America (GCNA) for breach of contract, unjust enrichment, and breach of trust related to a sludge removal contract.

Todd counterclaimed for Wessuc's failure to complete the contract.

The court found that the contract was a lump sum agreement for 6100 m³ of sludge removal, not a per-unit price for total volume including water.

Wessuc abandoned the project by ceasing work and failing to provide a plan for completion, entitling Todd to terminate the contract.

Wessuc's claim for damages and quantum meruit was dismissed as it did not substantially complete the work.

Todd's counterclaim for costs incurred to complete Wessuc's work, including cattail removal, equipment, fuel spill cleanup, and sand/sawdust for drying sludge, was allowed for $53,000.

GCNA was found to have no obligations under the bond due to Wessuc's failure to provide timely and adequate notice.

Wessuc Inc. brought a motion on the second day of trial to withdraw several admissions made in its Amended Reply and Defence to Amended Counterclaim.

The admissions were inconsistent with Wessuc's main pleadings, particularly regarding the contract terms (unit price vs. capped price) and notice under a labour and material payment bond.

The court applied the three-part test for withdrawing admissions (triable issue, inadvertence, and lack of uncompensable prejudice).

The court found that the proposed amendments raised triable issues, the admissions were due to "breathtaking" inadvertence by counsel, and there was no uncompensable prejudice to the defendants, who had continued preparing for trial on the contested issues.

The motion was granted, allowing Wessuc to withdraw the admissions.

No costs were awarded for the two days of court time lost due to the motion, as both parties were deemed at fault for the delay.

The defendants, Dr. Yasser Khan, Dr. Yasser A. Khan Medicine Professional Corporation, and Carrot Eye Surgery Clinic, brought motions to set aside a noting in default entered by the self-represented plaintiffs, Larry Westcott and Sharon Lea Westcott.

The court applied the test for setting aside a noting in default, considering the behavior of both parties, the length and reasons for delay, the complexity and value of the claim, and the absence of prejudice to the plaintiffs.

The court found that the defendants acted promptly upon discovering the default, intended to defend the action, and that the plaintiffs' conduct (noting default without prior notice, then demanding excessive costs for consent) was not ideal.

Given the complexity of the medical negligence claim and the significant damages sought, the court emphasized the preference for resolving disputes on their merits.

The motions were granted, setting aside the noting in default, with no costs awarded to any party.

The plaintiff in a construction lien action brought a motion for leave to amend its Statement of Claim to plead restitution unjust enrichment and for leave to file a document brief at trial.

The court denied leave to amend, finding that the proposed amendments were legally untenable because the Construction Lien Act prohibits joining non-contractual claims, such as pure restitution unjust enrichment, in a lien action.

However, the court granted the plaintiff leave to file its document brief at trial, as the documents were potentially relevant and any prejudice from late service was mitigated by a trial adjournment.

Costs of $7,500 were awarded to the responding party.