Neil S. Abbott

A priority dispute arose between a building mortgagee and construction lien claimants over funds paid into court to vacate liens.

The plaintiff lien claimant argued the priority extended to the full amount owed by the owner to the general contractor.

The mortgagee argued priority was limited to the 10 percent statutory holdback.

The court held that paying money into court to vacate a lien does not alter the priority scheme under the Construction Lien Act, and the lien claimants' priority over the mortgagee was limited to the statutory holdback amount.

The applicants appealed two decisions by Tarion Warranty Corporation denying their claims regarding their new home.

The first claim alleged a major structural defect due to dampness and efflorescence on the garage foundation wall.

The second claim sought Second-Year warranty coverage for the same issue.

The Licence Appeal Tribunal dismissed both appeals, finding no evidence of a load-bearing failure or that the home was uninhabitable, which is required for a major structural defect.

Furthermore, the tribunal found the applicants failed to request a conciliation inspection within the prescribed eligibility period for the Second-Year warranty.

The appellant appealed a Licence Appeal Tribunal decision dismissing his claim against Tarion Warranty Corporation for second-year warranty construction deficiencies.

The appellant argued he was denied a fair hearing due to the Tribunal Member's bias and erroneous evidentiary rulings, including restricting his expert's testimony.

The Divisional Court found no reasonable apprehension of bias and held that the Member properly exercised discretion in limiting the expert's evidence regarding Ontario Building Code standards.

The appeal was dismissed.

The applicants appealed Tarion's denial of their claim for a Major Structural Defect regarding their new home's hydronic heating system.

The home suffered from severe heating issues, requiring the applicants to supplement heat with a wood stove and causing family members to move out during the first winter.

Evidence revealed that the under-slab insulation was significantly below the Building Code and design specifications, the PEX tubing was not properly elevated in the concrete, and several heating loops were leaking.

The Licence Appeal Tribunal found that these defects in work and materials materially and adversely affected the use of the building as a home.

The appeal was allowed, and Tarion was directed to perform remedial works to replace the heating distribution system and install proper insulation.

The applicant appealed a decision by Tarion Warranty Corporation denying claims under the Second-Year Warranty of the Ontario New Home Warranties Plan Act.

The claims involved alleged water leakage, defective marble tile installation, masonry cracks, and other construction issues.

The Licence Appeal Tribunal dismissed the appeal, finding that none of the items constituted a breach of the Second-Year Warranty, as they were either normal shrinkage, not covered by the warranty, or met the Ontario Building Code requirements.

The appellant purchaser appealed a decision finding that a real estate transaction was for a block parcel of land rather than on a square foot basis.

The purchaser argued that the real estate agent misrepresented the land size.

The Divisional Court dismissed the appeal, finding that the purchaser was provided a site plan with precise measurements prior to closing and could not have been misled.

Furthermore, the Agreement of Purchase and Sale contained an entire agreement clause, and the purchaser did not make square footage a term of the agreement.

The appellants appealed an order finding that a debt to Kroll had been established and that the bankruptcy petitions were not filed for an improper purpose.

The Court of Appeal dismissed the appeal, finding that there was evidence to support the trial judge's findings and no basis to interfere.

In an addendum regarding costs following an appeal, the Court of Appeal held that the appellant was entitled to partial-indemnity costs up to the date of a settlement offer and substantial-indemnity costs thereafter to the conclusion of the trial.

The court noted that a Rule 49 offer made before trial does not apply to proceedings in the Court of Appeal.

Trial costs were referred for assessment, and the appeal costs were fixed at $15,000 plus disbursements and GST.

The appellant bank financed the respondents' shopping centres with security instruments including a debenture and an assignment of leases and rents.

After the loan defaulted, but before the bank enforced its security, the respondents diverted $394,100 in rental receipts to a new corporate account.

The application judge held the respondents were free to use the rents until the bank enforced its security.

The Court of Appeal reversed, finding that under the assignment of rents, the borrower's freedom from accountability ended upon default.

The court ordered judgment in favour of the bank for the diverted funds.