C. Albert

Two unpaid construction lien claimants sought priority over a first mortgagee holding a $6.5 million vendor take-back (VTB) mortgage on a contaminated commercial property.

The court had to determine the actual value of the property on the date the first lien arose and whether the VTB constituted an 'advance' under section 78(3) of the Construction Lien Act.

The court found that the actual value of the property was at least $6.5 million, relying on arm's length offers rather than the lien claimants' expert opinion, and held that a VTB mortgage is an advance equivalent to an institutional mortgage.

Consequently, the mortgagee's interest took priority over the lien claimants.

The plaintiff excavation contractor brought a construction lien claim against the defendant developer for unpaid contract work and extras.

The primary dispute was whether the plaintiff was entitled to charge extra for disposing of contaminated soil, which the defendant argued was included in the fixed contract price.

The court found that the defendant's agent had represented the soil as clean and that the parties had agreed to an extra charge of $47 per metric tonne for contaminated materials.

The court awarded the plaintiff $523,241.99 for the extras, finding the defendant liable for the increased disposal costs and other authorized scope changes.

The plaintiff contractor registered a construction lien and claimed payment for services and materials supplied to build a commercial addition for the defendant owner.

The project was delayed primarily due to issues relocating a hydro transformer, leading the owner to terminate the contract and claim set-off for completion costs and deficiencies.

The court found mutual breaches of contract but determined the owner owed the contractor $146,735.50 for unpaid certified work, subject to allowable backcharges of $54,917.95.

The court awarded the contractor the net balance of $91,817.55 plus prejudgment interest, while dismissing several of the owner's backcharge claims for lack of proof or failure to plead them.

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.

Following the dismissal of the defendant's motion for partial summary judgment, the successful plaintiff sought costs on a partial indemnity scale.

The defendant argued the claimed amount was excessive and objected to the plaintiff's 'team approach' to the litigation.

The court found the division of labour reasonable but applied a discount to reflect the junior lawyers' experience and the fact that some work would apply to trial preparation.

Costs were fixed at $53,231.77 inclusive of fees, disbursements, and HST.

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.

Dirm 2010 Inc. brought a construction lien claim against Prestressed Systems Incorporated (PSI) for unpaid work on a concrete topping subcontract for a parking garage.

PSI counterclaimed, alleging Dirm's work was defective and that Dirm fundamentally breached the contract.

The court found that the contract consisted of the negotiated terms, not the onerous unsigned purchase order PSI attempted to impose.

The court held that Dirm's work, while requiring some remediation, did not constitute a fundamental breach.

PSI breached the contract by terminating Dirm without reasonable opportunity to cure and without justification.

Dirm was awarded $1,315,159.20 for completed work, allowable extras, and lost profit, less reasonable backcharges for deficiencies.

The moving party, Pacific Hardwood Limited, was entirely successful on a motion to discharge a construction lien registered by the responding party, Dolvin Mechanical Contractors Ltd. The parties could not agree on costs and filed written submissions.

The court found that the responding party had improperly registered a $2.3 million lien against the moving party's property without a contract and failed to perfect it.

Due to the responding party's conduct in refusing to release the lien and unnecessarily delaying the motion, the court awarded costs to the moving party on a substantial indemnity basis in the amount of $23,493.50.

The plaintiff construction company supplied concrete foundation services and materials to the defendants under a verbal contract.

The plaintiff registered a construction lien for $42,798.75 and brought an action for payment.

The defendants argued the contract was with their numbered company, the price was lower, and they had paid in cash.

The court found the contract was with the individual defendants, accepted the plaintiff's evidence of the contract price, and found no payments were made toward this specific project.

The court ordered the defendants to pay the full amount claimed and confirmed the validity of the lien.

The plaintiff structural steel subcontractor registered a construction lien and sued the general contractor and the owner for unpaid invoices and extras on a fixed-price contract.

The subcontractor had abandoned the project prior to completion due to non-payment.

The court found that the subcontractor breached the contract by walking away, as progress payments for the final phase were not yet due.

The subcontractor's claims for extras were largely dismissed because they were not approved in advance and lacked independent proof of value.

The owner's counterclaim for delay and inspection costs was partially allowed, while the general contractor's counterclaim was dismissed for lack of evidence.

The subcontractor and general contractor were found jointly and severally liable to the owner for delay and inspection costs, setting off the small amount allowed for one extra.

The plaintiff subcontractor claimed payment for extras on a watermain project, while the defendant general contractor counterclaimed for backcharges.

The court applied the Goldsmith test to determine whether the claimed extras were within the scope of the subcontract.

The court dismissed the claims for remobilization, flood damage, sludge removal, and re-inspection, finding them either unproven or within the contract's scope.

However, the court awarded the subcontractor $39,179.71 for additional hand lining required due to an unforeseen change in the tunnel's slope.

The general contractor's counterclaim for backcharges was dismissed for lack of proof.

The plaintiff contractor registered a construction lien and sued the defendant homeowner for the unpaid balance of a home renovation project.

The defendant counterclaimed for deficient and incomplete work, alleging the plaintiff abandoned the job.

The court found that the parties had an oral contract based on unit prices and that the defendant committed an anticipatory breach by refusing to pay the full price for the expanded scope of work.

Relying on the defendant's expert's valuation, the court awarded the plaintiff $14,365.73 for the value of work completed, extras, and disbursements, less payments already made.

Following a bifurcated trial where the plaintiff was successful in establishing an owner-contractor relationship, the court determined the costs payable for the first issue.

The court found the plaintiff's offer to settle did not attract substantial indemnity costs as it was served less than seven days before trial.

The court declined to order costs payable from the receiver's reserve fund, finding the receiver unreasonably duplicated the mortgagee's efforts.

Costs were fixed on a partial indemnity scale at $68,421.97, payable by the mortgagees, with payment deferred until the completion of the reference trial.

The plaintiff contractor brought a construction lien action for unpaid invoices totaling $30,716.09 for home renovations.

The defendant homeowner counterclaimed for deficiencies, accommodation expenses, and a full refund, arguing the unwritten contract was unenforceable under the Consumer Protection Act.

The court found the defendant deliberately deceived the plaintiff by promising payment to ensure completion.

Applying section 93(2) of the Consumer Protection Act, the court held it would be inequitable not to enforce the contract.

The plaintiff was awarded the balance owing, less set-offs for minor deficiencies and cleaning.

The plaintiff elevator maintenance company registered ten construction liens against five apartment buildings owned by the defendants for unpaid maintenance and repair services totaling $122,810.30.

The defendants claimed a set-off of $75,000, alleging the plaintiff failed to properly maintain the elevators, necessitating upgrades by a new contractor.

The court found the plaintiff proved its accounts and the defendants failed to prove any breach of contract by the plaintiff.

The court upheld the liens, including those for advance payments, and dismissed the defendants' set-off claim.

The court also dismissed a mid-trial recusal motion brought by the defendants.

The plaintiff demolition contractor registered a construction lien after abandoning the site due to the defendant developer's failure to pay a progress draw.

The dispute centered on whether the contract required crushing concrete to 3-inch minus or 3/4-inch minus, and whether the plaintiff was responsible for removing asphalt and imported materials.

The court found the defendant breached the contract by failing to pay the progress draw, the contract specified a 3-inch minus crush, and the lien was registered in time.

After accounting for payments and proven backcharges, the defendant was ordered to pay the plaintiff $81,271.93.

The plaintiff brought a motion to enforce an accepted offer to settle a construction lien claim for $75,000.

The defendant argued that the settlement sum was all-inclusive and included costs, and alternatively asked the court to exercise its discretion not to enforce the settlement.

The court found that the offer was made pursuant to Rule 49 and, being silent on costs, entitled the plaintiff to assessed costs up to the date of acceptance under Rule 49.07(5).

The court declined to exercise its discretion to reject the settlement, finding no evidence of mistake and noting the prejudice to the plaintiff if the lengthy litigation were to continue.