Michael Carmine Mazzuca

This decision concerns a construction lien action that settled before trial.

The plaintiffs, trustees and agents for union members, registered a lien and commenced an action against the contractor and property owner.

After the underlying debt was paid, the property owner (Con-Form Holdings Limited) sought costs from the plaintiffs, arguing the lien was untimely and exaggerated.

The court dismissed Con-Form’s claim for costs, finding the plaintiffs’ actions were justified by the contractor’s default and that the validity and amount of the lien were never adjudicated.

The court ordered Con-Form to pay the plaintiffs $1,000 in costs for responding to the costs submissions.

This is an appeal from a summary judgment motion.

The appellant, 4342 Queen St. Niagara Holdings Inc. ('Queen'), challenged a summary judgment ordering it to pay Arcamm Electrical Services Ltd. ('Arcamm') nearly $1 million for electrical repair services.

Queen argued that Arcamm's alleged contributory fault for damages to electrical transformers raised genuine issues for trial and that granting summary judgment risked inconsistent findings with a related subrogated claim.

The Court of Appeal allowed the appeal, finding that the motion judge erred by failing to properly address the contributory fault defence and by not recognizing the genuine issues for trial and the risk of inconsistent findings.

The Court affirmed that contributory fault can be raised as a defence in contract actions to apportion damages.

The summary judgment was set aside, and Queen was ordered to bring a motion to consolidate the actions.

A surety (Westport) brought an interpleader motion seeking a declaration of priority over funds awarded to a subcontractor (High Tech) in an ODACC adjudication, or alternatively, for the funds to be paid into court.

The funds were held in trust by the general contractor's (BDA) counsel due to competing claims.

The court found that Westport, as surety, had a valid security interest and trust claim over the funds based on the indemnity agreement with High Tech.

The court rejected High Tech's argument that the Construction Act's prompt payment provisions gave it priority.

However, the court also found that there were triable issues regarding Westport's good faith in processing claims and making advances, which precluded a final order for immediate payment to Westport.

Therefore, the court ordered the disputed funds to be paid into court pending the outcome of ongoing litigation between the parties.

Following an appeal where a new trial was ordered, the Court of Appeal issued a costs endorsement regarding the costs of the first trial.

The parties had agreed on appeal costs but not on trial costs.

The Court agreed with the respondent's submission that the disposition of the costs of the first trial should be left to the trial judge hearing the new trial, as that judge would be in the best position to determine the issue.

Arcamm Electrical Services Ltd. (Arcamm) brought a motion to quash an appeal by 4342 Queen St. Niagara Holdings Inc. (Queen) to the Court of Appeal for Ontario, arguing that the underlying summary judgment, granted in a Construction Act action, should have been appealed to the Divisional Court.

The Court of Appeal dismissed Arcamm's motion, holding that the appeal properly lay with the Court of Appeal because the summary judgment was granted under Rule 20 of the Rules of Civil Procedure based on a contractual claim, not under the Construction Act, and the court's jurisdiction is determined by the substance of the order made.

The appellants appealed the dismissal of their action for negligence, fraud, fraudulent misrepresentation, and intentional interference with economic relations against an accountant.

The Court of Appeal found that the trial judge erred by prematurely dismissing the action and erroneously rejecting the appellants' accounting expert's testimony.

The expert's reports, though not explicitly using "standard of care," clearly opined on the impropriety and negligence of the respondent's accounting actions, which was relevant to the claims.

The Court of Appeal allowed the appeal, set aside the dismissal, and ordered a new trial before a different justice due to a miscarriage of justice.

The court determined costs for two summary judgment motions.

Arcamm Electrical Services Ltd. successfully obtained judgment against 4342 Queen St Niagara Holdings Inc. for unpaid invoices, while its claim against Avison Young Real Estate Management Services LP was dismissed as Avison was found to be Queen's agent.

Avison Young also successfully obtained indemnification from 4342 Queen St Niagara Holdings Inc. for its legal costs.

The court awarded partial indemnity costs to Arcamm against Queen, partial indemnity costs to Avison against Queen (for defending Arcamm's claim via a Sanderson Order), and full indemnity costs to Avison against Queen (for its successful indemnification claim).

The decision emphasized Queen's conduct in unnecessarily complicating the proceedings and refusing to admit facts.

The Court of Appeal for Ontario considered a motion regarding an appeal that arose under the Construction Lien Act.

The moving parties (respondents) argued that the Court of Appeal lacked jurisdiction over the appeal.

The court agreed, finding that jurisdiction for such matters lay with the Divisional Court, and that the question of whether the underlying order was final or interlocutory was for the Divisional Court to decide.

Consequently, the Court of Appeal quashed the appeal and declined to exercise its discretion to transfer the appeal to the Divisional Court.

Costs were awarded to the successful moving parties.

Arcamm Electrical Services Ltd. brought a summary judgment motion against Avison Young Real Estate Management Services LP and 4342 Queen St Niagara Holdings Inc. for unpaid invoices related to emergency electrical repairs and equipment replacement at a commercial property.

The court granted summary judgment against 4342 Queen St Niagara Holdings Inc. (Queen), finding it liable as the owner under the Construction Act and in contract for the services and materials provided.

The court dismissed the claim against Avison Young Real Estate Management Services LP (Avison), concluding that Avison acted solely as Queen's agent and was not an "owner" under the Act, nor liable in contract.

The court also addressed the applicability of prompt payment provisions, finding Arcamm's invoices were not "proper invoices" under the Act, and clarified that the decision on Arcamm's invoices would not prejudice related subrogated claims regarding transformer damage.

This is an appeal concerning confidentiality orders in a civil action involving a minor plaintiff (P1), two minor defendants (D1, D2), and a school (XYZ School) with its employees.

The original motion judge had issued broad sealing and publication ban orders to protect the identities of the minor parties, extending to the school and its employees.

The appellants (P1 and Toronto Star) argued these orders were overbroad.

The Court of Appeal, applying the reformulated Sherman Estate test, found that while protecting the minors' identities was an important public interest, anonymizing the school and its employees was not necessary.

The court allowed the appeal, setting aside the broad sealing order and limiting the anonymity and publication bans to only the minor parties and their litigation guardians, along with specific identifying information, while allowing the school's identity to be public.

This decision addresses motions in three consolidated construction lien actions.

Sutton Forming Inc. sought a declaration on Homes by DeSantis (Lake) Inc.'s minimum holdback obligation under the Construction Lien Act and an order for payment from it.

The court clarified that the holdback is calculated based on the contract price for services actually supplied, not amounts paid, and rejected the owner's objections regarding certificate accuracy and set-off for deficiencies.

The court granted leave for the motion, declared the minimum holdback, and ordered specific payments to Sutton and its sub-subcontractors from the holdback.

The court dealt with the costs of a construction lien trial where the plaintiff, a union trust fund, successfully established holdback liability against the defendant general contractor.

Despite the judgment amount being relatively small compared to the litigation costs, the court awarded substantial indemnity costs to the plaintiff.

This decision was based on the defendant's failure to accept a reasonable offer to settle, its attempts to retroactively reduce holdback liability, and its lack of effort in narrowing the issues.

The court emphasized the remedial nature of the Construction Lien Act and the protection of workers' claims.

The defendants, two American corporations, brought a motion under Rule 21.01(3)(a) to dismiss an oppression claim for lack of subject matter jurisdiction, arguing they were not governed by the Ontario Business Corporations Act (OBCA).

The plaintiffs alleged an oral agreement for a 5% ownership interest in the defendant companies, asserting they were beneficial owners and the defendants were affiliates of Ontario corporations controlled from Ontario.

The court found that the OBCA's definition of "affiliate" could include foreign corporations controlled by the same person as an Ontario corporation, and that the Ontario Superior Court had jurisdiction over the oppression claim, as well as other claims for breach of contract and tracing.

The motion to dismiss was denied.

The appellant, Deltro Electric Ltd., appealed from an order requiring it to repay $2 million USD to the respondent, Potentia Renewables Inc., with a receiver appointed over its assets in the event of non-payment.

The dispute arose from a failed business relationship concerning a ground-mount solar project in Barbados.

The application judge found that Deltro had breached and repudiated its obligations under a Letter of Intent and Amendment to Letter of Intent, and that final approval of the project had not been obtained within the required timeframe.

The Court of Appeal dismissed the appeal, upholding the application judge's interpretation of the contractual documents, rejection of fresh evidence, and appointment of the receiver with limited liability provisions.

This decision addresses a construction lien proceeding focused on the holdback liability of a general contractor (Louis W. Bray Construction Limited - LWB) to a union trust fund (Local 93) for work performed by a sub-contractor (F & H Concrete Forming).

The court determined that the sub-contract was a stipulated price contract, not a labour-only contract, and that LWB's own payment certifications were the most reliable evidence of the value of completed work.

The basic holdback liability of LWB was found to be $110,827.66.

The court rejected LWB's argument for a lower holdback amount and Local 93's claim for notice holdback, finding that any funds otherwise due to F & H were subject to setoff for completion and remedial costs incurred by LWB.

The validity and quantum of the liens were deferred for a separate summary procedure.

The Bondfield Group, a major construction company, sought CCAA protection due to insolvency, over $1 billion in active contracts, and over 200 lawsuits.

The application was unopposed and resulted from extensive stakeholder negotiations.

The court granted an initial order for CCAA protection, including a stay of proceedings, approval of a tailored $8 million Debtor-in-Possession (DIP) facility funded by Zurich Insurance, an Administration Charge for professional fees, and a Directors' Charge for $3 million (excluding John Aquino).

The court emphasized the public interest in completing critical infrastructure projects and the preference for CCAA over receivership to preserve enterprise value.

This endorsement addresses three issues following earlier Reasons for Decision: the appointment of KSV Advisory as interim receiver, Deltro's request to reargue its position on repudiation of a Letter of Intent (LOI), and Deltro's request to introduce new affidavit evidence.

The court appointed KSV as receiver, finding no conflict of interest.

Deltro's motion to reargue the repudiation issue was dismissed based on the functus officio principle, as the argument was previously available and no miscarriage of justice was demonstrated.

Similarly, Deltro's motion to introduce new affidavit evidence was dismissed, as the evidence could have been obtained with reasonable diligence and did not meet the high threshold for reopening a case to avoid a miscarriage of justice.

The defendants brought a motion to compel the plaintiff to deliver a further and better affidavit of documents, arguing that the plaintiff's initial affidavit was incomplete and missing key documents related to pre-contractual agreements, contract terms, and the quality and functionality of materials supplied.

The plaintiff contended that the documents were irrelevant or already in the defendants' possession.

The court partially granted the motion, ordering the plaintiff to produce specific communications and documents related to the materials' condition, particularly those already exchanged between the parties.

However, the court dismissed requests deemed overly broad, irrelevant to the pleadings, or more appropriate for exploration during examinations for discovery, such as documents concerning the plaintiff's general manufacturing processes or experience.

The respondent moved to quash an appeal from the dismissal of a motion for an interlocutory injunction.

The Court of Appeal granted the motion to quash, finding that the order dismissing the interlocutory injunction was interlocutory in nature and therefore outside the jurisdiction of the appellate court.

The court held that the characterization of an order as final or interlocutory depends on its legal nature rather than its practical effect.

The court also rejected the appellants' concern that the motion judge's reasons conclusively determined the issue of confidentiality, noting that the issue remained open for trial.

The defendants Laari Construction Ltd. and SMS Rents brought a motion seeking a declaration that the plaintiff Carpenters Union's construction lien had expired due to non-compliance with Section 34(5) of the Construction Lien Act.

The defendants argued that the lien was improperly registered because it did not contain the names and addresses of the individual Carpenters Union members who performed the work.

The Carpenters Union contended that naming the trustee as agent for affected members was sufficient, especially given the practical difficulties in identifying individual workers and their specific entitlements at the time of registration.

The court found that the Carpenters Union had sufficiently identified the lien claimants by naming the trustee as agent for the affected members and complied with Section 34(5) of the Act.

Consequently, the motion brought by Laari and SMS Rents was dismissed.