D. Morawetz

The defendant developer moved under section 44(5) of the Construction Lien Act to further reduce the security posted in court for the plaintiff contractor's lien from $525,000 to $149,265.21.

The defendant argued the lien should be calculated based on unpaid amounts and delay claims, less payments made, and pro-rated across the 9 unsold condominium units out of 179 total units.

The court rejected the plaintiff's calculation method for failing to account for substantial payments made by the defendant.

However, the court found that whether a lien claimant is limited to a pro-rata recovery against only the liened units in a condominium is a novel triable issue.

Because the unpaid balance without pro-rating exceeded the current security, the motion to reduce security was dismissed.

The respondent landlord brought a motion to lift the stay of eviction pending the tenant's appeal.

The tenant had previously been ordered to pay rent arrears and ongoing rent as a condition of the stay but failed to make any payments.

The tenant did not provide substantive submissions in response to the motion.

The court lifted the stay of eviction and awarded costs of $1,600 to the landlord.

The defendants brought a motion to remove the plaintiffs' law firm of record, arguing a conflict of interest because lawyers from the firm acted on the underlying mortgage transaction and would likely be called as witnesses at trial.

The court applied the factors from Essa (Township) v. Guergis and found that the late stage of the proceedings, the delay in bringing the motion, and the plaintiffs' undertaking not to cross-examine the lawyers mitigated the risks.

The motion to remove counsel was dismissed.

The appellants appealed a summary judgment awarding damages for unpaid invoices and declaring a breach of trust under the Construction Lien Act.

The Divisional Court raised a jurisdictional issue, noting that the proceeding primarily involved non-statutory claims for goods sold and delivered, with the trust claim being ancillary.

The court held that section 71 of the Construction Lien Act did not confer jurisdiction over the entire proceeding, which was properly appealable to the Court of Appeal under section 6 of the Courts of Justice Act.

The court ordered the appeal transferred to the Court of Appeal.