5 total
Subcontractor awarded unpaid balance; general contractor's delay counterclaim dismissed for failing to prove critical path impact.
Schindler Elevator Corporation brought an action to perfect a construction lien for unpaid services and materials supplied for the installation of elevators at the Women's College Hospital redevelopment project.
The general contractor, Walsh Construction/Bondfield Partnership (WBP), counterclaimed for delay impact losses, liquidated damages, and indemnification for penalties, alleging Schindler's delayed performance critically impacted the project schedule.
The court found that while Schindler breached the subcontract by delayed performance, WBP failed to prove that Schindler's delays impacted the critical path of the project or caused the majority of the claimed damages.
Schindler was awarded judgment for the unpaid subcontract balance, less minor set-offs for direct impacts, and WBP's claims against Schindler and its surety, Zurich, were dismissed.
Construction lien masters have enhanced summary judgment powers, but granting unrequested summary judgment breached procedural fairness.
The appellant appealed a decision refusing to confirm a master's report that granted summary judgment in a construction lien action.
The Divisional Court held that a master acting as a referee under the Construction Lien Act has the jurisdiction to use the enhanced powers of a judge on a summary judgment motion.
However, the appeal was dismissed because the master deprived the self-represented respondent of procedural fairness by treating his motion to discharge the lien under section 47 as a motion for summary judgment without notice.
The matter was remitted back to a master for disposition.
Motion to strike affidavit partially granted where portions lacked foundational knowledge or contained improper legal interpretation.
In a pre-trial motion regarding the admissibility of trial affidavit evidence, the moving party sought to strike the entirety of an affidavit.
The moving party argued the affidavit contained inadmissible, irrelevant, and opinion evidence without proper foundation.
The Master found that while the affiant had personal knowledge of certain communications, substantial portions of the affidavit lacked foundational knowledge or contained improper legal interpretation and argument.
The Master ordered specific paragraphs struck but admitted the remainder of the affidavit.
Motion for unredacted settlement minutes partially granted; financial amounts remain privileged but other terms must be disclosed.
The plaintiff, Schindler Elevator Corporation, moved for the production of fully unredacted minutes of settlement between the defendants (WBP) and a third party (Yuanda).
WBP had produced a partially redacted version, claiming settlement privilege over the financial terms.
The court found that while the specific settlement amounts should remain privileged, other redacted information relevant to the apportionment of delay and quantification of damages must be disclosed to ensure procedural fairness at the upcoming trial.
The court ordered WBP to produce a further version of the minutes with only the specific settlement amounts and payment dates redacted.
Motion to allow a US attorney to examine witnesses at trial denied under the Law Society Act.
The moving party sought an order authorizing a US attorney to conduct the examination and cross-examination of US-based delay experts at an upcoming trial in a construction lien reference.
The responding parties opposed the motion, arguing the Law Society Act prohibits non-licensees from providing legal services in Ontario.
The Master dismissed the motion, finding that the clear and precise language of section 26.1 of the Law Society Act removed any inherent jurisdiction of the court to permit a non-licensee to provide legal services, and a reference master has no greater discretion than the court.
