Construction Law - ODC

The moving party brought a motion for leave to appeal the decision of R. Smith J. dated June 26, 2024.

The Divisional Court dismissed the motion for leave to appeal without costs.

The appellant supplier claimed it was owed $600,000 for building materials and sought a declaration that the proceeds of the sale of a model home were held in trust under the Construction Act.

The motion judge ordered only a portion of the sale proceeds to be held in court under Rule 45.02, finding a serious issue to be tried only for the materials supplied to that specific home.

The appellant appealed, arguing the order was final.

The Divisional Court quashed the appeal, holding that the order was interlocutory because it did not finally determine the substantive rights of the parties regarding the scope of the trust.

The appellant appealed an order reducing the amount of security the respondent was required to pay into court to vacate a construction lien.

The appellant argued the motion judge erred in law by providing deficient reasons that prevented meaningful appellate review.

The Divisional Court agreed, finding the motion judge's five-paragraph endorsement lacked sufficient explanation for reducing the security and failed to address the conflicting evidence regarding the contract price.

The appeal was allowed, the order was set aside, and the matter was remitted for redetermination by a different judge.

The appellant contractor appealed a trial decision awarding prejudgment interest at the Courts of Justice Act rate rather than the higher contractual rate.

The respondent homeowners cross-appealed the trial judge's award of damages for two change orders and the refusal to award damages for deficiencies covered by a Licence Appeal Tribunal (LAT) settlement.

The Divisional Court dismissed both the appeal and cross-appeal.

The court found the trial judge did not err in the interest award because the contractor had withdrawn its claim for the contractual rate at trial.

The court also upheld the trial judge's findings that the change orders were payable as extras and that the LAT had jurisdiction to enforce the settlement regarding deficiencies.

The appellants appealed a trial judgment and costs decision resulting from four consolidated actions related to a construction project.

The appellants argued the trial judge erred by admitting hearsay evidence (trucking invoices and dump tickets) without requiring the truck drivers to testify, and by misapprehending evidence regarding soil quality and excavation.

The Divisional Court dismissed the appeal, finding the trial judge properly admitted the documents under the principled approach to hearsay through viva voce testimony, especially since the appellants had not objected at trial and had taken an 'all or nothing' approach by alleging fraud.

The court also found no palpable and overriding error in the trial judge's factual findings regarding the poor soil conditions and the necessity of trucking soil offsite.

The appeal regarding the apportionment of storage costs for a Ferrari given as compensation was also dismissed.

The moving party sought leave to bring an application for judicial review to set aside part of an adjudicator's determination.

The Divisional Court dismissed the motion for leave.

The court ordered no costs due to the absence of a Costs Outline, directed that deposited monies be paid out to the responding party, and lifted the stay against the enforcement of the determination.

The appellants appealed an order dismissing their motion to set aside a noting in default in a construction lien action.

The appellants had failed to deliver a statement of defence for over a year and offered no explanation for their delay.

The Divisional Court dismissed the appeal, finding the motion judge made no error in refusing to lift the default given the lack of evidence.

The court also noted the appellants improperly attempted to adduce fresh evidence without leave.

The applicant moved for a stay of a prompt payment adjudication order under the Construction Act requiring it to pay approximately $685,000 to the respondent, pending an application for judicial review.

The respondent consented to the stay on the condition that the full amount be paid into court.

The applicant argued against this condition, citing irreparable harm and balance of convenience.

The Divisional Court found that the applicant failed to establish irreparable harm if the money was paid into court, and the balance of convenience strongly favoured requiring payment into court.

The stay was granted on the condition that the applicant pay $700,000 into court.

The appellant contractor appealed a trial judgment that granted the respondent subcontractor a personal judgment for a structural steel subcontract and a valid lien for a miscellaneous metals subcontract.

The respondent cross-appealed the trial judge's finding that its lien rights for the structural steel subcontract had expired because they were not preserved separately from the miscellaneous metals subcontract.

The Divisional Court dismissed the appeal and allowed the cross-appeal, holding that under the Construction Lien Act, a subcontractor's lien rights do not expire on a subcontract-by-subcontract basis, but rather persist until 45 days after the date of last supply of services or materials to the improvement.

The respondent was granted judgment and lien remedies for the aggregate amount of both subcontracts.

The applicant sought judicial review of two prompt payment adjudications under the Construction Act, arguing procedural unfairness.

The applicant alleged the respondent raised new reasons for non-payment not detailed in its Notices of Non-Payment and that the adjudicators unfairly denied the applicant's request to deliver reply submissions.

The Divisional Court dismissed the application, finding the adjudicators reasonably concluded the respondent merely elaborated on its original reasons, and the refusal of reply submissions accorded with the Act and the parties' agreed process.

The applicant sought judicial review of an adjudicator's decision awarding the respondent $93,445.92 under the Construction Act.

The dispute centered on whether the adjudicator had jurisdiction under the Act's transitional provisions, given the contract covered clean-up work for two separate wastewater ponds (Pond #7 and Pond #14) with different procurement dates.

The Divisional Court held that the works on the two ponds constituted separate improvements on non-contiguous lands.

Consequently, the adjudicator lacked jurisdiction over claims related to Pond #7, as its procurement process commenced before the adjudication provisions came into force.

The court quashed the award for Pond #7 and reduced the total award to $11,638.17 for Pond #14.

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.

The moving party brought a motion for leave to apply for judicial review of an adjudicator's interim and final decisions.

The Divisional Court granted leave to apply for judicial review and ordered that the adjudicator's decisions be stayed pending the final determination of the application.

The moving party, a lumber supplier, sought an extension of time to commence an appeal to the Divisional Court from an order regarding the preservation of funds under Rule 45.02 and the Construction Lien Act.

The moving party had initially appealed to the Court of Appeal, which quashed the appeal for lack of jurisdiction.

The Divisional Court granted the extension of time, finding that the moving party had a bona fide intention to appeal, provided a reasonable explanation for the delay, caused no prejudice to the respondents, and raised arguable questions of law on the merits.

The appellant sought leave to bring an application for judicial review of an adjudicator's interim determination under the Construction Act, which ordered him to pay the respondent contractor $119,314.

The appellant argued the adjudicator lacked jurisdiction because the contract had been abandoned and thus 'ceased to exist', and because a lien had already been registered and bonded off.

The Divisional Court dismissed the motion, holding that jurisdictional challenges must be raised before the adjudicator first, an abandoned contract does not cease to exist, and the Act expressly permits concurrent adjudication and lien proceedings.

The parties brought a statutory appeal and cross-appeal from an arbitrator's award under the Ontario New Home Warranties Plan Act.

The Divisional Court directed the parties to address whether leave to appeal was required as a preliminary issue.

The court held that while it had jurisdiction to hear the appeal, the Arbitration Act applied because the Tarion Addendum constituted an arbitration agreement that did not specify appeal rights.

Consequently, leave to appeal was required and the appeal was strictly limited to questions of law.

The appellant appealed a Small Claims Court judgment awarding the respondent subcontractor $14,300 for extra work performed on a construction project.

The trial judge found that the developer and appellant had insisted on a material change in methodology that required the respondent to use more expensive motorized buggies instead of cement trucks to protect the substrate.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings, his conclusion that there was an implied agreement to pay for the extras, or his assessment of damages.

The appellant appealed an order dismissing its motion opposing the confirmation of a report made by an Associate Judge following a consolidated construction lien action.

The Divisional Court found no error of law or palpable and overriding error of fact in the motions judge's decision.

The appeal was dismissed, and costs were awarded to the respondents.

The appellant appealed an order discharging a Claim for Lien and vacating a Certificate of Action registered against a property.

The motions judge had found that the appellant was a partner in the property development, making him an 'owner' under the Construction Lien Act rather than a 'contractor', and therefore ineligible to register a lien against his own property.

The Divisional Court dismissed the appeal, finding the motions judge correctly applied the test for partnership and relied on relevant evidence.

The appellant appealed an arbitration and cost award under the Ontario New Home Warranties Plan Act.

At the outset of the hearing, the Divisional Court raised preliminary questions regarding its jurisdiction to hear the appeal and whether leave to appeal was required under the Arbitration Act, 1991.

The court adjourned the hearing and directed the parties to provide written submissions on these jurisdictional issues.