Construction Law - ODC

The appellants (owners) appealed a trial judgment awarding the respondent (contractor) damages and a construction lien for unpaid work and lost profits under a fixed-price residential construction contract.

The owners had terminated the contract mid-construction, alleging fundamental breach due to unilateral design changes and delays.

The trial judge found the owners were responsible for design flaws, the contractor's changes were necessary and approved, and there was no fundamental breach justifying termination.

On appeal, the Divisional Court upheld the trial judge's findings, concluding there was no palpable and overriding error in the assessment of fundamental breach, the valuation of the work completed, or the award for lost profits.

The court also rejected the owners' argument that the trial judge's negative credibility findings against them demonstrated a reasonable apprehension of bias.

The moving party, Sota Dental Studio Inc., brought a motion for leave to seek judicial review of an adjudicator's decision.

The Divisional Court granted the motion for leave, with costs fixed at $5,000 payable in the discretion of the application panel.

The appellants appealed a Small Claims Court judgment that awarded the respondent contractor payment for construction framing work, including 'extras', and partially allowed the appellants' counterclaim for deficiencies.

On appeal, the appellants argued the trial judge inverted the burden of proof, misapprehended evidence, and made unsupported credibility findings.

The Divisional Court dismissed the appeal, finding no inversion of the burden of proof and no palpable and overriding errors in the trial judge's factual or credibility assessments.

Forest Grove Homes Limited appealed a Licence Appeal Tribunal decision ordering Tarion Warranty Corporation to repair three Ontario Building Code violations related to the roof of a new home owned by Elaine Ducas.

Ducas cross-appealed, seeking an order requiring Tarion to investigate and correct the underlying cause of water penetration, which the Tribunal found was likely ice damming.

The Divisional Court dismissed both the appeal and the cross-appeal, finding no palpable and overriding error in the Tribunal's factual findings regarding the building code violations, and agreeing that the statutory warranty did not require the builder to investigate the cause of the leak absent proof that a design flaw caused the ice damming.

The appellant, a non-party principal of the plaintiff construction company, appealed a trial judge's order making him jointly and severally liable for approximately $579,000 in costs.

The trial judge found the appellant had engaged in gross misconduct, including lying under oath and forging documents to support an inflated construction lien claim.

The Divisional Court dismissed the appeal, holding that the trial judge properly exercised her inherent jurisdiction to award costs against a non-party whose conduct amounted to an abuse of process.

The applicants sought judicial review of an Ontario Labour Relations Board decision that denied their successor rights application following the merger of two construction companies.

The Board had awarded bargaining rights for formwork to the Carpenters' Union to avoid jurisdictional conflict, as the merged entity intermingled employees.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding the Board's decision to avoid jurisdictional conflict under section 69(6)(c) of the Labour Relations Act was justified, transparent, and intelligible.

The appellant appealed a Small Claims Court decision ordering him to pay the balance owing on a restoration contract.

The appellant argued the trial judge erred in finding a fixed-price contract, assessing deficiencies, and adding the respondent's corporation as a plaintiff at the start of trial.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding the contract and deficiencies.

The court also held that adding the corporate plaintiff was either done on consent or was a permissible correction of a misnomer, as the appellant knew he was dealing with the individual respondent's company and suffered no prejudice.

The appellant property owner entered into a contract with the respondent builder for the construction of a luxury home, paying a $3.8 million non-refundable deposit.

After the appellant failed to pay over $10.4 million in interim invoices, the respondent obtained summary judgment.

The appellant appealed solely on the issue of whether the deposit should be credited against the judgment.

The Divisional Court dismissed the appeal, holding that the deposit was intended to secure completion of the contract and was forfeit due to the appellant's breach, rather than acting as a prepayment for interim invoices.

The appellant appealed a Master's judgment granted on a motion to enforce a settlement or for summary judgment in a construction lien reference.

The Divisional Court found that while the Master had jurisdiction to hear the motion, the Master erred by granting a Judgment rather than issuing a Report.

This distinction is critical as it determines the proper routes for review and appeal.

The appeal was allowed, the judgment was set aside, and the matter was remitted to the Master to issue a Report.

The appellant subcontractor supplied materials to a construction project but was not paid by the contractor, who subsequently went bankrupt.

Having failed to register a construction lien, the appellant sued the owner for breach of trust under the Construction Lien Act and unjust enrichment.

The Divisional Court dismissed the appeal, holding that the Act requires privity of trust for a trust claim and that the comprehensive statutory scheme of the Act provides a juristic reason precluding an unjust enrichment claim against the owner.

The appellant appealed a motion judge's decision that reduced a Master's awards for an extra invoice, prejudgment interest, and costs in a construction lien dispute.

The motion judge had found that the Master made a palpable and overriding error regarding the date of a supplier's invoice, which tainted the Master's overall negative assessment of the respondents' credibility.

The Divisional Court allowed the appeal, holding that while the Master's factual error was palpable, it was not overriding, as the credibility findings were supported by numerous other significant factors.

The motion judge erred in law by reassessing credibility and substituting his own findings.

The respondents' cross-appeal for a new trial was dismissed.

The appellant contractor appealed a decision declaring its construction lien expired.

The motions judge had found that the owner's notice of termination constituted 'abandonment' of the contract under s. 31(2) of the Construction Lien Act, triggering the 45-day period to register a lien.

The Divisional Court allowed the appeal, holding that abandonment requires the contractor to abandon the contract, either subjectively or objectively.

A unilateral termination notice by the owner does not force abandonment by the contractor, especially where the contractor remains ready, willing, and able to complete the work and settlement discussions are ongoing.

The appellant general contractor appealed a motion judge's refusal to discharge a second construction lien registered by the respondent subcontractor.

The respondent had registered a first lien, discharged it due to an error in the dates of service, and registered a second lien for the same amount.

The Divisional Court allowed the appeal, finding that under s. 48 of the Construction Lien Act, the discharge of a lien is irrevocable and the lien cannot be revived.

The motion judge erred in finding the first lien a nullity without giving the parties an opportunity to make submissions, and in failing to consider the curative provision in s. 6 of the Act.

The second lien was ordered discharged.

The Divisional Court issued an endorsement on costs following multiple appeals under the Construction Lien Act.

Noting that the case was litigated without regard for proportionality, the court recognized that the respondent on appeal had no choice but to engage with its meritorious but modest claim.

Costs of all appeals were fixed in the aggregate at $65,000 inclusive, payable to the respondent on appeal from the appellant and recoverable from the lien security.

The appellants appealed a trial judgment enforcing a construction lien against them.

The trial judge had applied the 'special circumstances' doctrine to extend the limitation period to add a tenant corporation as a defendant, and pierced the corporate veil to find the landlord corporation was an 'owner' under the Construction Lien Act due to common ownership.

The Divisional Court allowed the appeal, holding that the 'special circumstances' doctrine does not apply to the mandatory statutory deadlines in the Construction Lien Act, and that the corporate veil cannot be pierced absent conduct akin to fraud.

The applicant sought judicial review of an Ontario Labour Relations Board decision granting union certification for employees working on a federal nuclear waste remediation project.

The applicant argued that its labour relations were subject to federal jurisdiction because the project involved nuclear substances.

The Divisional Court dismissed the application, finding that the applicant was a large construction company performing a temporary contract and was not a federal undertaking itself, nor was it sufficiently integrated into the federal undertaking to trigger derivative federal jurisdiction.

A dissenting judge would have found derivative federal jurisdiction based on the federal regulatory regime governing nuclear substances.

The appellant sought to appeal a costs order made under the Construction Lien Act independent of the merits of the judgment.

The court held that pursuant to section 67(3) of the Construction Lien Act, the requirement to obtain leave to appeal costs under section 133(b) of the Courts of Justice Act applies.

As the appellant did not seek or obtain leave, the appeal was quashed.

The appellant mortgagee appealed multiple orders, including a finding of contempt for attempting to sell a property under a power of sale in violation of a court order, and a finding that the respondent's construction lien had priority over its mortgage.

The Divisional Court dismissed all appeals.

The court held that the appellant was bound by its formal admission of contempt made during sentencing, and the Apology Act did not apply to admissions made under oath or by counsel in court.

Furthermore, the court upheld the finding that the construction lien had priority because the appellant failed to prove any funds were actually advanced under its mortgage.

The appellant sought to appeal an order refusing a stay of summary judgment.

The Divisional Court held that under s. 71(3) of the Construction Lien Act, no appeal lies from an interlocutory order.

Citing Court of Appeal precedent, the court confirmed that an order refusing a stay of summary judgment is procedural and therefore interlocutory.

Consequently, the court lacked jurisdiction to hear the matter, and the appeal was dismissed with costs.

The appellant general contractor appealed a trial judgment awarding $142,553.33 to the respondent subcontractor in a construction lien action.

The appellant argued the respondent abandoned the project when faced with a payment dispute.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the respondent had fully performed its obligations and did not abandon the contract, but rather stopped work due to the appellant's material breach in refusing to pay.