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 plaintiff flooring contractor sued the defendant general contractor for unpaid invoices relating to the installation of a concrete urethane floor in a brewery.

The general contractor counterclaimed and brought separate actions against the flooring subcontractors and the product manufacturer, alleging the floor was negligently installed and defective.

The court found that the alleged defects were cosmetic and resulted from the general contractor's decision to substitute a cheaper flooring product without the designer's approval, as well as poor maintenance by the brewery.

The court granted the plaintiff's claim for unpaid invoices and dismissed the general contractor's counterclaim and third-party actions.

The plaintiff demolition subcontractor brought a lien action for unpaid work, and the defendant general contractor counterclaimed for damages caused when the plaintiff severed an underground electrical duct bank, causing a power outage at a wastewater treatment plant.

The court found the plaintiff breached its subcontract and was negligent by failing to review drawings, obtain locates, and follow its own demolition plan.

However, the court also found the defendant 15% contributorily negligent for failing to communicate its knowledge of the duct bank to the plaintiff.

The plaintiff's lien claim was offset against 85% of the defendant's damages, resulting in a net judgment payable by the plaintiff to the defendant.

The plaintiff supplier brought a motion for summary judgment against the owner and the principal of the contractor for unpaid invoices.

The contractor had terminated its contract with the owner, and the owner signed a termination agreement promising to pay the contractor's outstanding obligations to specific suppliers, including the plaintiff.

The court found that the owner was directly liable to the plaintiff under the principled exception to the privity of contract doctrine.

The court also found that the principal's personal guarantee was not released because the release was contingent on the owner paying the invoices.

Summary judgment was granted against the owner and the principal.

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.

The plaintiff subcontractor moved for summary judgment against the defendant surety on a labour and materials payment bond after the general contractor defaulted and failed to pay the plaintiff's invoices.

The surety argued that the plaintiff had fully mitigated its damages by entering into a replacement subcontract with the new general contractor for a higher amount than the remaining value of the original subcontract.

The court held that the plaintiff's opportunity to profit from the replacement subcontract was separate from and collateral to the general contractor's failure to pay the invoices.

The motion for summary judgment was granted.

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 plaintiff contractor sued the defendant municipality for unpaid amounts under a unit-price contract for road reconstruction.

The claims included unpaid quantities of unit-price line items, unpaid claims for changes or extra work asserted during the project, and claims for changes and extras discovered during litigation.

The court first determined that the claims discovered during litigation were barred due to failure to provide timely notice, but the municipality had waived strict compliance with notice provisions for claims asserted during the project.

The court then analyzed each of the 36 individual claims, weighing the evidence of the parties' respective witnesses and records.

Ultimately, the court awarded the plaintiff $547,261.75 plus pre-judgment interest.

A subcontractor sued a municipality after being required to remove and replace unapproved streetlight poles installed on a municipal highway project.

The court held there was no contract between the municipality and the subcontractor, no duty of good faith or honest performance owed by the municipality, and no basis to recognize a new duty of care in tort in the tendering context.

Applying the unlawful means tort framework, the court found the municipality merely insisted that its general contractor comply with the tender specifications and did not use unlawful means or intend to cause economic harm.

The action was dismissed, and the court further found the alleged damages were unsupported by reliable evidence.

Following the dismissal of the plaintiff's claim at trial, the successful defendant sought costs on a substantial indemnity scale, relying on an offer to settle for a dismissal without costs.

The court held that the offer amounted to an offer to capitulate and did not engage Rule 49.10.

Costs were awarded on a partial indemnity scale, fixed at $35,873.11, taking into account the modest complexity of the claim and the plaintiff's late abandonment of an intentional interference with economic relations claim.

An electrical subcontractor brought a construction lien action seeking payment for overtime and premium labour charges and other alleged extras arising from work performed during the construction of an automotive assembly plant.

The subcontract was a stipulated price agreement under the CCA1 standard form, requiring written notice of claims for adjustments to the subcontract price.

The court held that labour performed during premium shifts was within the scope of the subcontracted work and did not constitute “extra work.” The subcontractor also failed to comply with the contractual notice provisions, which operated as a condition precedent to recovery.

Most additional claims were dismissed for the same reason, although the defendant’s counterclaim for a back charge was also dismissed because the evidence did not establish that the subcontractor’s scope included the high-voltage work in question.

Addendum to previously released reasons for judgment correcting an administrative error concerning the identification of counsel.

After the original decision was released, the court was advised that the names of counsel for the parties had been reversed.

The court issued an addendum to accurately reflect counsel for the plaintiff and defendant.

The addendum does not alter the substance of the earlier reasons or the disposition of the case.

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.

The appellant appealed a quantum meruit damages award of $100,000 for architectural services, arguing the trial judge should have used a percentage of construction costs method rather than an honorarium method.

The respondents cross-appealed the award of prejudgment interest and costs.

The Court of Appeal dismissed both the appeal and cross-appeal, finding no error in the trial judge's exercise of discretion given the lack of reliable evidence regarding the work done and expenses incurred.

The appellant appealed an order of Master MacLeod, arguing procedural unfairness because the order was allegedly made without formal notice or supporting materials, precluding an explanation for its defaults.

The Divisional Court dismissed the appeal, finding that the record disclosed full notice to the appellant and there was no palpable and overriding error or erroneous exercise of discretion by the Master.

The appellant appealed a trial judgment dismissing its claim for breach of fiduciary duty arising from commercial negotiations.

The appellant argued the trial judge erred in applying the law of fiduciary obligations to parties negotiating towards an agreement.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the trial judge's conclusion that none of the indicia of a fiduciary duty were present, as the appellant did not repose trust of a confidential nature and was not vulnerable.

The appellants appealed an order declaring their construction lien invalid and vacating its registration.

The motion judge had invalidated the lien because the Affidavit of Verification lacked a completed jurat, despite subsequent evidence confirming it was properly sworn before a commissioner.

The Divisional Court allowed the appeal, distinguishing between the affidavit itself and the jurat, which merely provides evidentiary proof.

The Court held that subsequent proof of the proper completion of the affidavit is acceptable, and the lien remains valid.