Michael Arnold Handler

The appellants, construction lien claimants, appealed a Divisional Court decision that granted priority to a vendor-take-back mortgage, including interest and enforcement costs, over their lien claims.

The Court of Appeal affirmed the Divisional Court's ruling, holding that the priority of prior mortgages under s. 78(3) of the Construction Act extends to arrears in interest and enforcement costs, consistent with long-standing judicial interpretation and practice, and that a vendor-take-back mortgage constitutes an "advance" for the purposes of the Act.

The appeal was dismissed with costs.

The plaintiffs, shareholders in Domenic Cosentino and Co. Limited (DCCL), brought a motion seeking an injunction to halt the sale of the company's sole asset, the Wolfedale Road property, an interim preservation order, or a Certificate of Pending Litigation (CPL), alleging oppressive conduct by the controlling shareholders, Mary and Tony Cosentino.

The plaintiffs claimed Mary and Tony had mismanaged company finances, depleted property equity through undisclosed mortgages, and acted without transparency regarding the property sale and their personal financial benefits.

The court found that Mary and Tony's actions were oppressive, establishing a serious issue to be tried and irreparable harm if the sale proceeded without safeguards.

However, the court denied the injunction, preservation order, and CPL, finding that the balance of convenience favored allowing the sale to proceed due to the company's dire financial state and mortgage default.

Instead, the court ordered that the net proceeds of the sale be paid into court, and Tony's disputed commission be held pending trial.

The defendant vendor brought a motion to stay an action commenced by the plaintiff purchasers, arguing that the dispute, concerning the termination of an agreement of purchase and sale due to the alleged incomplete state of a new home, fell under a mandatory arbitration clause.

The plaintiffs opposed, contending that the defendant had waived its right to arbitration by pleading to the action, unduly delayed bringing the motion, and that the matter was suitable for summary judgment.

The court found that the dispute fell within the arbitration clause, the defendant had not unduly delayed, and the matter was not appropriate for summary judgment due to significant factual disputes.

Consequently, the defendant's motion to stay the action was granted, and the plaintiffs' cross-motion for an adjournment to bring a summary judgment motion was implicitly dismissed.

The appellant appealed a motion judge's order dismissing his motion to amend his statement of claim.

The motion judge had refused certain amendments as statute-barred under the Limitations Act, 2002 and deferred other amendments pending the determination of an outstanding motion for partial summary judgment.

The motion judge also awarded costs against the appellant.

The appellant raised two grounds of appeal: alleged bias by the motion judge and error in refusing leave to amend.

The Court of Appeal dismissed the appeal, finding no evidence of bias and upholding the motion judge's discretionary procedural orders regarding the timing of amendments and the statute-barred nature of certain claims.

Fermar Paving Limited brought a motion seeking a declaration that Toronto Zenith Contracting Limited's construction lien had expired, arguing it was not preserved within the 45-day limitation period mandated by the Construction Lien Act.

Toronto Zenith contended its lien was timely, asserting that off-site preparatory work performed during a scheduled winter shutdown constituted ongoing subcontract responsibilities and lienable supply, thereby extending the preservation period.

The court found that the winter shutdown did not terminate Toronto Zenith's ongoing subcontract obligations and that the off-site work added value to the improvement, rendering the lien timely and valid.

Fermar's motion was dismissed with costs.

Following a successful civil trial in which the plaintiffs recovered $50,000, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs exceeding $48,000 including taxes and disbursements.

The court considered the parties’ conduct during trial, including delays and procedural complications caused by the defendant and his lay agent, as well as the proportionality of costs relative to the amount recovered.

While acknowledging that the plaintiffs prevailed and that their disbursements were reasonable, the court reduced the requested amount to ensure proportionality.

Costs were fixed at $35,654.19 inclusive of HST and disbursements.