Construction Law - ONCA

The appellant homeowners' action was administratively dismissed for delay under r. 48.14(1) of the Rules of Civil Procedure because it was not set down for trial within five years of commencement.

The motion judge declined to set aside the dismissal, applying the Reid factors and finding insufficient evidence to explain the delay, with inferred prejudice where examinations for discovery had not occurred.

The Court of Appeal found no palpable and overriding error in the motion judge's reasoning, noting that the appellants bore the primary responsibility for their action's progress and that the delay was moving into the realm of 'inordinate' once the five-year mark was crossed.

The appellant developer sought a declaration that a COVID-19 emergency regulation extending limitation periods also extended the 36-month deadline in a City of Toronto by-law for submitting a building permit application after receiving a demolition permit, which would have entitled the appellant to a development charge reduction of $6.7 million.

The application judge dismissed the application, finding the by-law deadline was not a limitation period within the meaning of the regulation.

The Court of Appeal found no error and dismissed the appeal.

The moving party, a construction company, sought to transfer its appeal of a lien action dismissal order from the Court of Appeal to the Divisional Court pursuant to s. 110 of the Courts of Justice Act, or alternatively an extension of time to perfect the appeal.

The motion judge found that conflicting precedents — TRS Components and Arcamm — created genuine uncertainty over whether the appeal route under s. 71 of the Construction Act lay to the Divisional Court or the Court of Appeal.

Unable to conclude the appeal was filed in the wrong court, the motion judge declined the transfer.

The extension of time was granted given that both parties had operated under the shared mistaken assumption that the Court of Appeal lacked jurisdiction, which was attributable to the competing jurisprudence rather than inadvertence.

The appellant appealed an order dismissing her application to remove a construction lien registered by the respondent for sewage backup remediation work.

Prior to the hearing, the Court of Appeal raised the issue of whether it had jurisdiction over the appeal or if it should have been brought to the Divisional Court under s. 71(1) of the Construction Act.

The parties agreed that the Divisional Court had jurisdiction.

The Court of Appeal confirmed that decisions made in reliance on the Construction Act, including orders discharging or refusing to discharge a lien, must be appealed to the Divisional Court.

The appeal was transferred accordingly.

The appellant challenged refusal to set aside a struck defence and a default judgment imposing trust-based liability for unpaid construction invoices.

The court upheld the motion judge’s findings on delay, credibility, and absence of arguable defence, and confirmed quantum based on deemed admissions under default rules and Construction Act trust obligations.

The appellant Ministry of Transportation appealed a summary judgment dismissing its action against a contractor as statute-barred.

The parties' standard form construction contract required a notice of protest and alternative dispute resolution to be completed within two years of contract completion.

However, the referee's decision was not released until after this two-year period expired.

The Court of Appeal held that the motion judge erred in interpreting the contract; it is commercially absurd to require a party to protest a decision before it is released.

Because the contractual limitation period could not apply, the statutory two-year limitation period governed, and the appellant's action was commenced in time.

The appeal was allowed and the summary judgment set aside.

The appellant appealed a summary judgment dismissing its action for outstanding amounts under a construction contract.

The Court of Appeal upheld the motion judge's findings that summary judgment was appropriate, that the respondent had not waived its right to rely on the contract's strict notice requirements, and that equitable claims for quantum meruit and unjust enrichment were precluded by the existence of a valid contract.

The appeal was dismissed with costs.

In a CCAA proceeding, the Monitor sought leave to appeal an order dismissing its motion for a declaration that funds swept into a UK bank account were subject to a statutory trust under the Construction Lien Act.

The CCAA judge had found the funds were irreconcilably commingled and could not be traced.

The Court of Appeal refused to admit fresh evidence and denied leave to appeal, finding the proposed appeal was not prima facie meritorious and the decision was fact-specific and consistent with established jurisprudence regarding tracing.

The appellants appealed the dismissal of their action for construction deficiencies in their cottage.

The motion judge had granted summary judgment to the respondents on the basis that the appellants' claims were statute-barred under the Limitations Act, 2002, finding that the claims were discoverable in 2009 when the appellants first noticed problems with a sinking deck pier.

The Court of Appeal allowed the appeal, finding that the motion judge made material misapprehensions of the expert evidence and erred in his discoverability analysis.

The court held that the appellants did not have sufficient knowledge of the construction defects until receipt of the Terraprobe report in 2012, which identified that the stone retaining wall and cottage foundation had been negligently constructed on loose soil.

The court emphasized that knowledge of a problem is insufficient; the claimant must know that the loss is non-trivial and that litigation is an appropriate remedy.

This appeal and cross-appeal arose from a failed residential subdivision development project in Fort Erie, Ontario.

The central issues were whether the parties had entered into an enforceable written agreement dated December 13, 2005, whether there was a breach or repudiation of that agreement, and the validity of a construction lien filed by Ravenda Homes.

The motion judge had dismissed Ravenda Homes's breach of contract action, vacated its certificate of pending litigation, allowed its lien action, and allowed the respondent's counterclaim in part.

On appeal, the Court of Appeal upheld most of the motion judge's findings but set aside the award of damages under section 35 of the Construction Lien Act, referring that issue to trial.

The appellant Allto Construction Services Ltd. appealed a trial judgment dismissing its claim for $163,202.98 owed under a subcontract to install a sewage system for a pool construction project.

The respondent Aplus General Contractor Inc. denied owing the amount and asserted a counterclaim for damages to an irrigation system and overbilling.

The trial judge dismissed both the claim and counterclaim, finding that Allto failed to prove the amount owed through invoices or accounting.

The Court of Appeal allowed the appeal, finding the trial judge erred in principle.

The court held that Allto's oral evidence of non-payment, combined with Aplus's admission of the contract and performance of work without deficiencies, was sufficient to establish the outstanding claim without requiring further documentary proof.

The respondent's counterclaim for irrigation system damage was rejected as unreliable and unsupported.