Court File and Parties

2017 ONSC 560

DIVISIONAL COURT FILE NO.: DC-15-923-00 DATE: 20170123

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: A.C. Concrete Forming Ltd., Respondent (Plaintiff) AND: Time Development Construction Inc., (Defendant) Appellant

BEFORE: Kiteley, Kruzick, Myers, JJ.

COUNSEL: C. Losell, for the Respondent (Plaintiff) K. Power, for the (Defendant) Appellant

HEARD at Oshawa: January 23, 2017

Endorsement

Myers J (Orally)

[1] Without making any finding on whether s. 17(3) of the Construction Lien Act allows setoff of related claims among related parties and without commenting on the adequacy of the defendant’s plea of setoff and equitable setoff, it is clear that this appeal must fail.

[2] The motions judge made findings that the two contracts in issue were not sufficiently connected to support statutory setoff, equitable setoff, or a stay.

[3] The appellant’s arguments on setoff and a stay all turn on its argument that it was prevented from putting a full record before the court below. This flows from the motion judge’s refusal to grant an adjournment to the appellant as asked. The appellant acknowledges that there is no right to appeal that decision to this Court under the Construction Lien Act.

[4] Apart from its plea of a need for more evidence, the appellant has no argument that the judge made palpable and overriding errors of fact or an error in principle in the exercise of her discretion.

[5] As such, the appeal is dismissed.

[6] We are ordering costs of $10,000, paid by the appellant.

Myers J.

I agree _______________________________ Kiteley J.

I agree _______________________________ Kruzick J.

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