Lena Wang

The applicant, Johnson Bros.

Corporation, sought leave to appeal from a partial arbitration award and a final arbitration award concerning costs and interest.

The respondent, Soletanche Bachy Canada Inc., opposed the application.

The court dismissed the application, finding that the arbitration agreement, which incorporated CCDC 40 rules and stipulated that disputes would be "finally resolved" and awards "final and binding," precluded any right to appeal.

The court further held that even if a right to appeal existed, the proposed questions of law regarding the reversal of onus, weather-related damages, and COVID-19 impacts were either not pure questions of law or lacked sufficient evidentiary basis for appellate review.

The moving defendants brought motions to enforce settlement agreements dismissing two construction-related actions without costs.

The plaintiff opposed the motions, arguing the settlements were entered into due to misrepresentations, unconscionability, and misapprehension, and brought a cross-motion to join the actions to separate ongoing litigation.

The court found that a valid settlement was reached and rejected the plaintiff's arguments, noting that the alleged misrepresentations were based on double hearsay and the plaintiff was represented by capable counsel.

The court granted the motions to enforce the settlements and dismissed the cross-motion.

This decision addresses pre-trial motions brought by both Schindler Elevator Corporation and Walsh Construction Company of Canada, Bondfield Construction Company Limited, and Walsh Construction/Bondfield Partnership (collectively, WBP) concerning the admissibility of substantial affidavit evidence-in-chief tendered for trial.

Both parties raised numerous objections to statements in each other's affidavits, primarily on grounds of unqualified opinion, argument, legal conclusions, hearsay, speculation, and witness competency.

The Master ruled on these objections, striking various paragraphs or portions thereof and admitting others subject to weight, emphasizing that trial evidence must strictly comply with the rules of evidence, unlike evidence on motions or applications.

This decision addresses pre-trial motions brought by both Schindler Elevator Corporation and Walsh Construction Company of Canada, Bondfield Construction Company Limited, and Walsh Construction/Bondfield Partnership (collectively, WBP) concerning the admissibility of substantial affidavit evidence-in-chief tendered for trial.

Both parties raised numerous objections to statements in each other's affidavits, primarily on grounds of unqualified opinion, argument, legal conclusions, hearsay, speculation, and witness competency.

The Master ruled on these objections, striking various paragraphs or portions thereof and admitting others subject to weight, emphasizing that trial evidence must strictly comply with the rules of evidence, unlike evidence on motions or applications.

This supplementary endorsement addresses a dispute over compliance with a previous court order for the production of minutes of settlement.

Schindler Elevator Corporation argued that the defendants (WBP) had excessively redacted the minutes beyond what was permitted, specifically regarding references to items in an exhibit.

The court found that WBP's additional redactions were not justified and went beyond the original order.

It was determined that knowing the specific items to which settlement compensation was allocated was crucial for Schindler to prepare for trial and assess potential double-recovery.

The court ordered WBP to produce a further version of the minutes of settlement, removing the impugned redactions while maintaining the confidentiality of specific settlement and allocation amounts.

The defendants were successful on a motion declaring the plaintiff's construction lien expired and sought substantial indemnity costs of $5,930.74.

The court rejected the request for elevated costs, finding no reprehensible conduct by the plaintiff.

The court also noted the defendants improperly brought the initial motion without notice and failed to disclose a relevant consent timetable order.

The court fixed costs at $1,695.00, as suggested by the plaintiff, finding it fair and reasonable.

The defendants brought a motion seeking a declaration that the plaintiff's construction lien had expired, an order discharging the lien, and the return of cash security.

The plaintiff opposed, arguing that a consent timetable order extended the mandatory two-year period under section 37 of the Construction Lien Act (CLA) for setting the action down for trial.

The court found that sections 37 and 46 of the CLA are mandatory and cannot be extended by party agreement or consent order, citing binding appellate authority.

The court also found no evidence of an agreement to extend the time limit.

Consequently, the lien was declared expired, discharged, and the cash security ordered returned, while the action continued as an ordinary breach of contract claim.

This case conference addressed the scheduling of Carillion Construction Inc.'s motion for further productions against the City of Toronto and NORR Limited in a complex multi-party construction litigation concerning Toronto's Union Station project.

Carillion sought various production orders and a discovery completion deadline prior to a scheduled mediation.

The City and NORR argued for delaying the motion until after mediation, citing the volume of existing documents and the laborious process of retrieving new ones.

The court determined that Carillion's motion should proceed prior to mediation, finding no cogent reason to delay the argument, but indicated that the actual production of documents, if ordered, could potentially be deferred until after the mediation.

The court urged counsel to schedule the motion.

This case conference endorsement outlines procedural progress in a complex, multi-party construction litigation involving Carillion Construction Inc., the City of Toronto, and NORR Limited, among others.

The court addressed the schedule for executive discoveries, ruling that they must proceed as planned, contrary to the City's submission.

It also confirmed the mediation schedule for March-April 2019, involving various claimants and insurers.

Further directions were given regarding documentary production by subcontractors and the City's amended third-party claim against Metrolinx, setting deadlines for Metrolinx's response or motion.

The appellant Allto Construction Services Ltd. appealed a trial judgment dismissing its claim for $163,202.98 owed under a subcontract to install a sewage system for a pool construction project.

The respondent Aplus General Contractor Inc. denied owing the amount and asserted a counterclaim for damages to an irrigation system and overbilling.

The trial judge dismissed both the claim and counterclaim, finding that Allto failed to prove the amount owed through invoices or accounting.

The Court of Appeal allowed the appeal, finding the trial judge erred in principle.

The court held that Allto's oral evidence of non-payment, combined with Aplus's admission of the contract and performance of work without deficiencies, was sufficient to establish the outstanding claim without requiring further documentary proof.

The respondent's counterclaim for irrigation system damage was rejected as unreliable and unsupported.

Following a previous endorsement, the parties participated in a case conference to schedule the trial of an issue regarding whether they engaged in a course of conduct to vary the terms of a subcontract for extra work.

The court ordered the parties to file a Joint Supplementary Brief of Evidence by April 11, 2016.

A full-day hearing was scheduled for May 11, 2016, in the event cross-examinations and further legal argument are necessary.

The plaintiff, acting as receiver for a masonry subcontractor, brought a motion for summary judgment against the defendant general contractor for $100,701.83 in unpaid invoices and holdbacks.

The defendant argued the extra work was unauthorized and claimed set-offs for back charges and alleged deficiencies (efflorescence).

The court dismissed the set-off defences, finding no evidence of required prior notice for the back charges and no evidence that the remedial work for the efflorescence was necessary.

However, the court ordered a mini-trial to determine whether the parties' course of conduct varied the strict contractual requirement for written authorization of extra work.