Mark St. Cyr

The plaintiff, a construction manager, moved for an order to compel the appointment of an expert to determine if project delays constituted a "material change in scope" under the contract, which would entitle them to additional compensation beyond a fee cap.

The court dismissed the motion, finding that delay itself was not a change in scope as defined by the contract, but rather a consequence.

The court also held that the specific dispute regarding materiality had not yet crystallized, rendering the motion premature, and declined to grant leave under the Construction Lien Act in the current circumstances.

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.

Following summary judgment and cross-motions in a construction lien dispute, the court addressed competing claims for costs.

Both parties asserted substantial success: the plaintiff emphasized that key lien issues proceeded to trial, while the defendant argued it had significantly reduced its potential liability by eliminating several claims.

The court determined that success on the motions was divided.

Exercising its discretion under costs principles including proportionality and fairness, the court declined to award costs to either side for the motion and cross-motion.

Remaining costs in the action were left to be determined by the Construction Lien Master in the cause.

A contractor commenced a construction lien action after supplying refrigeration equipment to a tenant operating on leased premises.

The landlord sought summary judgment dismissing the lien claim and related claims, arguing it was not an “owner” under the Construction Lien Act and that the claims in contract, unjust enrichment, and quantum meruit were improperly advanced.

The court granted partial summary judgment dismissing the contract claim against the landlord and rejecting a request to pierce the corporate veil, and struck the unjust enrichment and quantum meruit claims as improperly joined under s. 55 of the Construction Lien Act.

However, the court held that factual issues remained regarding whether the landlord qualified as a statutory “owner” and whether the lien was timely preserved.

The action was therefore referred to a master for determination of the remaining construction lien issues.