Michael Farrell Cooper

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 plaintiff landlord sought double damages under sections 48 and 50 of the Commercial Tenancies Act against the tenant corporation and its principals for allegedly fraudulently or clandestinely removing goods to prevent distress for rent arrears.

The court found that the bulk of the goods were removed before rent arrears accrued and that the removal was not clandestine or fraudulent.

The claims against the individual defendants and the claim for double damages against the corporate tenant were dismissed.

The corporate tenant was found liable for damages for breach of lease due to unpaid rent.

The applicant brought a motion for summary judgment seeking specific performance of a settlement agreement resolving disputes among siblings relating to estate assets, including a residential property.

The agreement contemplated the applicant purchasing the property from the estate in exchange for relinquishing other estate interests.

The responding party argued that the agreement never came into force or had become void when the closing deadline passed without completion.

The court found the agreement had been validly formed and that the responding party’s inaction and failure to cooperate in executing further documents prevented closing and constituted repudiation.

Specific performance was granted because the property was unique and damages would be inadequate.

The plaintiff brought a motion to certify a proposed class action for settlement purposes arising from allegations that condominium purchasers were overcharged for development charges by the developers.

The parties negotiated a settlement establishing a $578,000 fund to compensate class members, with refunds representing approximately 52–73 per cent of the disputed charges.

The court held that the certification criteria under the Class Proceedings Act, 1992 were satisfied even in the settlement context.

The court further found that the negotiated settlement was fair, reasonable, and in the best interests of the class despite a single objection seeking full restitution.

Class counsel’s contingency fee of $144,500 (25 per cent of the settlement fund) was approved as reasonable given the work performed, litigation risks, and results achieved.