Construction Law - ODC

The appellants appealed a Small Claims Court judgment awarding the respondents $25,000 in damages for a defectively installed stamped concrete driveway and sidewalk.

The trial judge found that the colour and design were essential terms of the contract and awarded damages based on the cost to remove and replace the concrete.

On appeal, the appellants argued damages should have been assessed based on diminution of value.

The Divisional Court found no palpable and overriding error in the trial judge's choice of the measure of damages, given the factual finding on the importance of aesthetics.

However, the court reduced the damages to $17,200 to account for the $9,000 already paid by the respondents, preventing a windfall.

The appellant appealed a Small Claims Court decision dismissing his action for damages arising from allegedly negligent installation of vinyl siding by the respondent.

The trial judge found the appellant failed to prove negligence, noting ten years without issues and evidence of poor maintenance.

On appeal, the appellant argued the trial judge erred by not deciding the case on breach of contract.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the negligence analysis and holding that breach of contract was never pleaded or argued at trial.

The appellant appealed a trial judgment awarding him $21,000 for breach of a flooring contract, arguing the trial judge erred by failing to find fraud, failing to award damages for a technical assault, and failing to award punitive damages.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of damages or findings of fact.

Costs of the appeal were awarded to the respondents and set off against outstanding costs orders owed to the appellant.

The appellants appealed a summary judgment awarding damages for unpaid invoices and declaring a breach of trust under the Construction Lien Act.

The Divisional Court raised a jurisdictional issue, noting that the proceeding primarily involved non-statutory claims for goods sold and delivered, with the trust claim being ancillary.

The court held that section 71 of the Construction Lien Act did not confer jurisdiction over the entire proceeding, which was properly appealable to the Court of Appeal under section 6 of the Courts of Justice Act.

The court ordered the appeal transferred to the Court of Appeal.

The defendant appealed a Small Claims Court decision awarding the plaintiff the balance owing on a masonry contract and dismissing her counterclaim for faulty work.

On appeal, the defendant argued the trial judge demonstrated bias by disclosing a prior acquaintance with one of the plaintiff's witnesses and made palpable and overriding errors of fact.

The Divisional Court dismissed the appeal, finding no appearance of bias as the trial judge had repeatedly invited submissions on the issue and the defendant's representative had encouraged him to remain.

The court also found no palpable and overriding errors in the trial judge's factual findings, which were supported by the evidence.

The plaintiff brought a motion for an extension of time to appeal an order dismissing its motion to oppose confirmation of a Master's report in a construction lien action.

The plaintiff also sought an order requiring the defendants to repay monies obtained out of court pursuant to the report.

The Divisional Court dismissed the motion, finding that while the plaintiff had an intention to appeal and an explanation for the delay, the defendants would suffer prejudice, the appeal lacked merit as it attacked factual findings, and the justice of the case did not favour the plaintiff.

The applicant's motion for judicial review of a case management master's decision to recuse herself from construction lien proceedings was dismissed for prematurity.

The respondents sought costs on a substantial indemnity basis, arguing the applicant made reckless attacks on the integrity of a judicial officer.

The Divisional Court awarded costs on a partial indemnity basis, noting the bias issue was not determined on its merits.

The court ordered the applicant to pay $30,000 to the respondent 229 and $3,000 to the respondent St. Clare's.

The appellant appealed a Small Claims Court judgment awarding him $750 for a defective roof installation.

He argued the trial judge erred by allowing a representative of the shingle manufacturer to give opinion evidence without filing an expert report or being formally qualified as an expert.

The Divisional Court held that Small Claims Court judges have discretion under section 27 of the Courts of Justice Act to admit opinion evidence without a prior report.

However, the Court found the trial judge made a palpable and overriding error by discounting the witness's $2,000 repair estimate by 75%.

The appeal was allowed in part, and damages were increased to $2,250.

The appellant appealed a Master's order denying leave to amend its statement of claim to add its former solicitors as defendants in a breach of trust action.

The appellant alleged the solicitors negligently failed to properly register a construction lien.

The Divisional Court allowed the appeal, finding the Master erred in law by relying on compensable prejudice (delay and expense) to deny the amendment under Rules 26.01 and 5.04(2), and made a palpable and overriding error of fact by concluding the negligence claim was contingent on the outcome of the breach of trust action.

Leave to add the solicitors as defendants was granted.

The applicant builder sought judicial review of Tarion Warranty Corporation's decision finding it unwilling or unable to resolve warranty claims, which allowed Tarion to abridge vendor repair periods.

The Divisional Court dismissed the application without hearing the merits, finding that the issue was moot because the repair periods had long expired and Tarion had already undertaken the repairs.

The court also noted the applicant's unreasonable delay in bringing the application and the availability of an alternative remedy through an existing civil action.

The appellant appealed a trial decision ordering it to pay damages and costs arising from a construction contract dispute.

The Divisional Court upheld the trial judge's findings that the appellant was responsible for soffit and dropped ceiling work, finding no palpable and overriding error.

However, the court allowed the appeal regarding roof drainage repairs, finding the trial judge's factual findings did not support holding the appellant 50% responsible.

The court also reduced the trial costs award, finding the trial judge erred in principle by awarding a premium over partial indemnity costs.

The appellants appealed a motions judge's decision dismissing their motion for summary judgment based on the expiry of the limitation period.

The motions judge found a genuine issue for trial regarding when the respondent knew or ought to have known that the water leakage was caused by the appellants' acts or omissions.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the motions judge's conclusion or his decision not to exercise fact-finding powers under Rule 20.04, as resolving the discoverability issue would require considering virtually all trial evidence.

The appellants appealed a summary judgment decision finding they were 'owners' under the Construction Lien Act and owed trust obligations to construction trades.

The Divisional Court dismissed the appeal, holding that the motion judge's finding on ownership was a question of mixed fact and law entitled to deference.

The court also rejected the appellants' argument that privity of contract was required to impose trust obligations under section 9 of the Act, noting that such an interpretation would defeat the legislation's purpose of ensuring contractors and workers are paid in priority to owners.

The appellant contractor's construction lien expired after it failed to set the action down for trial within two years.

The respondent owner brought a motion without notice under section 46 of the Construction Lien Act, resulting in the dismissal of the entire action, including the appellant's breach of contract claims.

On appeal, the Divisional Court held that while the lien claims were properly dismissed, the contract claims should not have been summarily dismissed without notice.

The court varied the order to allow the breach of contract claims to proceed, noting that the Act does not mandate the dismissal of non-lien claims upon the expiry of a lien.

The defendants appealed a Small Claims Court judgment awarding the plaintiff $25,000 for breach of a settlement agreement.

The settlement required the defendants to direct an owner's holdback to the plaintiff's counsel and pay an additional $25,000 in post-dated cheques.

The defendants argued that because the holdback was larger than anticipated, they had overpaid and were not required to remit the remaining cheques.

The Divisional Court dismissed the appeal, finding that the defendants breached the clear terms of the settlement agreement, which triggered the default judgment provisions.

The moving parties (defendants) sought an extension of time to appeal a decision that reversed a Master's report in a construction lien dispute.

The appeal period under the Construction Lien Act had expired.

The court applied the test for extending time under Rule 3.02(1), finding that the moving parties had formed an intention to appeal within the prescribed period and provided a reasonable explanation for the delay, which was largely due to attempts to clarify the order and the retirement of the motions judge.

Finding no relevant prejudice to the respondent and that the appeal had some merit, the court granted the extension of time in the interests of justice.

The appellant building mortgagee appealed an order confirming a Master's report in a construction lien priority dispute.

The Master found that the appellant's $25,000 mortgage advance was made on November 19, 2009, giving the respondent lien claimant priority, based on a formal admission of fact that the appellant was refused leave to withdraw.

The Divisional Court dismissed the appeal, holding that the motion judge correctly applied the standard of review and that the formal admission of fact was conclusive.

Following the dismissal of two appeals heard together, the successful respondents sought costs.

One respondent sought substantial indemnity costs based on a Rule 49 offer to settle, while the other sought partial indemnity costs.

The appellant argued that no costs should be awarded because the appeal raised a novel issue of law regarding the interpretation of the Construction Lien Act.

The Divisional Court rejected the appellant's argument, finding the issue was not novel and the appellant's interpretation would have rendered section 20(2) of the Act meaningless.

The court awarded costs of $7,500 to each of the successful respondents.

The appellants appealed a Small Claims Court decision ordering them to repay $21,029.98 to the respondent for a botched solarium roof replacement.

The trial judge found the work was shoddy, negligent, and performed without a building permit, providing no benefit to the respondent.

The trial judge also pierced the corporate veil to hold the individual appellant personally liable.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the factual findings and upholding the decision to impose personal liability due to the individual's improper conduct.

The appellants (defendants) appealed a Small Claims Court judgment finding them liable for negligence and fundamental breach of contract regarding a roof installation.

The trial judge found the appellants failed to follow manufacturer specifications for high wind areas, voiding the 30-year warranty, and rejected their reliance on an 'act of God' exclusionary clause for wind damage.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or application of the law.