Max Shafir

The defendants brought a motion for partial summary judgment in a construction lien action, seeking a determination that the Consumer Protection Act (CPA) applied to their residential cost-plus construction contract and that the plaintiff breached the CPA by exceeding budget estimates by more than 10 percent.

The court granted the motion in part, declaring that the CPA applies to the contract and that it is a 'consumer agreement'.

However, the court found genuine issues requiring a trial regarding whether the specific budget line items constituted 'estimates' under the CPA and whether the parties had agreed to amend those estimates during the project.

The plaintiff brought a motion under Rule 34.15 of the Rules of Civil Procedure seeking an order compelling the defendant contractor to answer certain undertakings and refused questions arising from an examination for discovery.

The disputed questions concerned information about bonuses allegedly paid by the project owner to the contractor for work performed by the plaintiff subcontractor.

The defendant argued that the bonus issue constituted a new claim improperly raised in the plaintiff’s reply rather than the statement of claim and therefore refused to answer discovery questions on the topic.

The court held that the bonus issue formed part of the existing pleadings and that any challenge to the adequacy of the pleading should have been brought by motion to strike or amend.

The questions were relevant to the issues as pleaded and were ordered to be answered within a specified time.

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.