Max Shafir

The appellant subcontractor appealed a motion judge's decision to strike its statement of claim without leave to amend.

The appellant argued that the respondents' acceptance of a construction bond created a private law duty of care and a fiduciary duty to subcontractors.

The Court of Appeal dismissed the appeal, finding that the pleading failed to assert material facts establishing a fiduciary relationship, a voluntary assumption of duty, or any specific language in the bond creating such obligations.

The appellants appealed an order of the Superior Court of Justice and brought a motion to adduce fresh evidence based on ineffective assistance of counsel.

The Court of Appeal dismissed the motion for fresh evidence, finding the affidavit did not make out the case.

On the appeal, the Court allowed the appeal in part, setting aside a paragraph of the lower court's order that awarded unliquidated damages for repair costs.

The Court found that under Rule 19.05(2), the affidavit evidence supporting the repair costs was unsatisfactory as it lacked details and the deponent's qualifications.

The appeal was allowed in part without prejudice to the respondent's right to pursue the claim on proper evidence.

Costs of $4,000 were awarded to the respondent on agreement.

The appellants, subcontractors on a school construction project, appealed a trial judgment limiting their construction lien recovery to the general contractor's 10 per cent statutory holdback.

The general contractor had posted a lien bond to vacate one of the liens before the primary subcontractor abandoned the project.

The appellants argued that posting security made the full bond amount available to all lien claimants in addition to the statutory holdback, relying on previous case law.

The Divisional Court dismissed the appeal, holding that posting security under section 44 of the Construction Lien Act does not enlarge a contractor's liability beyond the statutory holdback and proper set-offs.

The court explicitly rejected the prior ruling in Francon, confirming that a contractor's liability to lien claimants is restricted to the amount fixed by the Act.