Elmford Construction Company Limited v. South Winston Properties Inc. et al.

[Indexed as: Elmford Construction Co. v. South Winston Properties Inc.]

59 O.R. (3d) 111

[2001] O.J. No. 3950

Docket No. C33143

Court of Appeal for Ontario

Morden, Laskin and Rosenberg JJ.A.

October 5, 2001

Construction liens -- Trust fund -- Restitution -- Unjust enrichment -- Constructive trustee -- Real estate developer providing letter of credit as security for performance of its obligation to provide services under subdivision agreement with municipality -- Bank issuing letter of credit to be drawn upon by municipality if services not constructed -- Developer hiring plaintiff to construct services -- Plaintiff not paid -- Plaintiff claiming that it had entitlement under trust constituted by letter of credit -- Municipality drawing on letter of credit but not using funds to pay plaintiff -- Plaintiff alleging that municipality and bank unjustly enriched -- Plaintiff alleging that municipality or bank were trustees under Construction Lien Act -- Plaintiff's claims dismissed on motion for summary judgment -- Construction Lien Act, R.S.O. 1990, c. C.30.

Restitution -- Unjust enrichment -- Constructive trustee -- Real estate developer providing letter of credit as security for performance of its obligation to provide services under subdivision agreement with municipality -- Bank issuing letter of credit to be drawn upon by municipality if services not constructed -- Developer hiring plaintiff to construct services -- Plaintiff not paid -- Plaintiff claiming that it had entitlement under trust constituted by letter of credit -- Municipality drawing on letter of credit but not using funds to pay plaintiff -- Plaintiff alleging that municipality and bank unjustly enriched -- Plaintiff alleging that municipality or bank were trustees under Construction Lien Act -- Plaintiff's claims dismissed on motion for summary judgment -- Construction Lien Act, R.S.O. 1990, c. C.30.

NOTE: An appeal of the judgment of the Ontario Superior Court of Justice (Dunnet J.), reported at 1999 CanLII 15083 (ON SC), 45 O.R. (3d) 588, to the Court of Appeal for Ontario was dismissed on October 5, 2001. The court's endorsement is as follows:

The judgment of the court was delivered by

Gregory D. Hersen, for plaintiff (appellant), Elmford Construction Company Limited. No counsel mentioned for the defendants (respondents).

[1] MORDEN J.A.: -- We agree with the reasons of Dunnet J. The appeal is dismissed with costs.