Kenneth Wolfgang Movat

Lien claimants sought orders protecting their construction lien claims from dismissal under sections 37 and 46 of the Construction Act due to claims not being set down for trial within two years of commencement.

The claims had been stayed by receivership orders.

The court granted the orders sought, finding that the processes employed were not undermining the policy of the Construction Act and that the circumstances warranted protection of the lien claims while the receivership proceeded.

The court emphasized the importance of balancing insolvency principles with the statutory intent of the Construction Act to deal with liens expeditiously.

The appellant appealed a summary judgment decision granting the respondent payment under a labour and materials payment bond.

The respondent had performed work under a subcontract with the general contractor, which subsequently abandoned the project.

The respondent then successfully bid to complete the remaining work under a new completion subcontract at more favourable terms.

The respondent claimed against the payment bond for unpaid invoices from the original work.

The appellant argued the respondent had fully mitigated its damages through the completion subcontract and therefore suffered no loss.

The Court of Appeal upheld the summary judgment, finding that the respondent's decision to bid on the completion subcontract was not an action taken to mitigate the loss from the failure to pay for the original work, but rather was a consequence of the contractor's abandonment of the project.

This addendum to the Reasons for Judgment corrects calculation errors identified by counsel for both parties.

The court revised six specific unit price items and an omitted item, leading to an increase in the total amount awarded to the plaintiff.

The final revised judgment requires the defendant to pay an increased sum plus pre-judgment interest.

The successful moving party on a prior motion for production of documents sought approximately $22,000 in costs.

The responding party argued that each side should bear its own costs because the motion raised a novel point of law and challenged the reasonableness of the moving party’s time and cross‑examination costs.

The court rejected the argument that the motion involved a novel legal issue and found the responding party’s resistance to production unreasonable.

However, the court held that the parties should bear their own costs for cross‑examinations on affidavits.

Costs were awarded to the successful moving party on a partial indemnity basis in the amount of $12,500, all inclusive.

The defendants sought an order in the nature of an appeal from a construction lien master’s report confirming liability arising from renovation work performed on the defendants’ home.

The master found that although the corporate plaintiff was not the direct contracting party, recovery was available on the basis of unjust enrichment given the services and materials supplied and the essential connection between the corporate entity and the individual who performed the work.

The defendants argued the master exceeded jurisdiction under the Construction Lien Act and erred in awarding equitable relief and in recognizing a subcontractor’s lien entitlement.

The court held that the statutory scheme provides broad authority to resolve all matters arising from the lien action and permits personal judgment even where a lien fails.

Finding no palpable or overriding error, the court confirmed the master’s report.