2 total
Adjudicator's decision set aside for procedural fairness breach after deciding case on unraised issue.
The applicant subcontractor sought judicial review of an adjudicator's determination under the Construction Act dismissing its claim for unpaid invoices.
The adjudicator had dismissed the claim on the basis that the contractor's invoices to the owner were not 'proper invoices', an issue neither party had raised or made submissions on.
The Divisional Court held that deciding the case on an unraised issue without allowing submissions was a breach of procedural fairness.
The application was allowed and the matter remitted to the adjudicator.
Costs denied following pre-trial settlement as court declined to conduct shadow trial to determine success.
The plaintiff and the defendant mortgagee settled a construction lien action prior to trial for $8,500, leaving only the issue of costs to be determined by the court.
The plaintiff sought full indemnity costs of over $38,000, while the defendant argued for minimal or no costs.
The court declined to award costs to either party, emphasizing the general reluctance to make costs awards where all substantive issues have been settled without judicial determination on the merits, as doing so would require a disproportionate 'shadow trial' solely to assess costs.
