Construction Law - ONSCDC

The appellant factoring company appealed a trial decision that dismissed its construction lien claim and found it jointly liable for damages caused by the contractor who abandoned the project.

The Divisional Court upheld the trial judge's factual findings regarding the lack of authority to approve invoices.

However, the court allowed the appeal in part, finding that the trial judge erred in using equitable and statutory set-off as a sword to award damages against the assignee factoring company that exceeded the value of its lien.

The damages award against the appellant was quashed.

The moving party, McMaster University, brought a motion for leave to proceed with an application for judicial review of an adjudicator's determination, and requested a stay pending the review.

The Divisional Court granted leave to proceed with the judicial review but denied the request for a stay.

Costs of the leave motion were fixed at $8,800 to follow in the cause.

The appellant contractor registered a construction lien against the respondent's property but failed to perfect it by registering a certificate of action in a timely manner.

The motions judge declared the lien expired and vacated it pursuant to the mandatory provisions of the Construction Act, and awarded substantial indemnity costs against the appellant.

On appeal, the Divisional Court affirmed the decision, holding that the failure to perfect a lien is a statutory breach that cannot be cured by procedural rules or equitable doctrines.

The appeal was dismissed with costs awarded to the respondent.

The moving party brought a motion for leave to seek judicial review of two determinations made by an adjudicator.

The Divisional Court dismissed the motion for leave and ordered the moving party to pay costs of $5,000 to the responding party.

The applicants sought to challenge Tarion Warranty Corporation's decision requiring security for potential 7-year warranty claims.

The applicants' registration had previously been revoked by a Consent Order.

The Divisional Court dismissed the application, finding that Tarion's concern about the risk of major claims was justified and its discretion was exercised reasonably.

Costs were awarded to the respondent in the agreed amount of $22,319.98.

The moving parties brought a motion for leave to appeal the decision of P. Boucher J. dated June 24, 2025.

The Divisional Court dismissed the motion for leave to appeal.

As no costs outlines were filed, no costs were awarded.

The appellant appealed a Small Claims Court decision dismissing its claim for unpaid flooring invoices on the basis that it was statute-barred under the Limitations Act, 2002.

The appellant argued the invoices were part of an ongoing construction contract and that the discoverability principle should apply.

The Divisional Court upheld the lower court's finding that there was no ongoing contract and that the invoices, which did not specify a payment date, were demand obligations.

The appeal was dismissed as the claim was commenced more than two years after the date of the last invoice.

The moving party brought a motion for leave to make an application for judicial review of an ODACC adjudicator's determination under the Construction Act.

The Divisional Court dismissed the motion.

No costs were awarded as the responding party failed to provide a Costs Outline.

The moving party sought leave to appeal an interim determination made by an adjudicator.

The Divisional Court dismissed the motion for leave to appeal without prejudice to either party seeking leave for judicial review once a final determination is made.

The moving party was ordered to pay costs of $5,000 to the responding party.

The appellant contractor appealed a Small Claims Court decision dismissing its claim for additional costs incurred during a home cladding project and granting the respondent homeowner's counterclaim for trespass.

The appellant had significantly underestimated the materials required and sought to rely on a contractual adjustment clause and quantum meruit to recover the extra costs.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Deputy Judge's conclusions that the homeowner did not consent to the additional work, the adjustment clause only covered minor changes, and the valid contract precluded a quantum meruit claim.

The appellant appealed a decision invalidating his construction lien for being commenced nine days after the 90-day limitation period.

The motion judge had held that the date of last supply stated in the Claim for Lien form was a binding admission requiring powerful evidence to overcome, despite uncontradicted evidence that the actual date of last supply was later.

The Divisional Court allowed the appeal, finding the motion judge erred in law by failing to consider s. 6(1) of the Construction Act, which provides that a claim for lien is not invalidated by a minor irregularity, such as an incorrect date, absent prejudice.

The court permitted the appellant to raise s. 6(1) for the first time on appeal and dismissed the respondent's motion to invalidate the lien.

The appellant purchased a new home from the respondent and requested custom modifications to the floor plan, which resulted in a smaller laundry room.

After closing, the appellant sued for breach of contract, claiming the laundry room was smaller than agreed upon.

The Small Claims Court dismissed the action, finding no contractual obligation for specific dimensions and noting the appellant initiated the design changes.

On appeal, the Divisional Court found no palpable and overriding error in the trial judge's factual findings and dismissed the appeal.

The appellants appealed a trial judgment ordering them to pay $160,171.70 in quantum meruit for cottage renovation work and $256,163.05 in substantial indemnity costs.

The appellants argued the remediation work was a fixed-price contract and that quantum meruit should not apply to customized goods left in the contractor's warehouse after the appellants terminated the project.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the contract was not fixed-price and that the contractor was entitled to reimbursement for the customized goods.

The substantial indemnity costs award was upheld due to the appellants' unproven and aggressively maintained allegations of fraud.

Following the dismissal of the applicant's motion for leave to apply for judicial review under the Construction Act, the parties could not agree on costs.

The respondent sought $13,803.13, while the applicant argued for no costs or $1,500 to $2,000.

The court found the respondent's claimed time excessive given their argument that the motion was doomed to fail based on established case law.

Applying the principles from Boucher, the court fixed costs payable by the applicant to the respondent at $5,000 inclusive of fees, disbursements, and HST.

The appellant appealed a trial judgment and costs endorsement regarding a construction contract dispute.

The trial judge had found the appellant's evidence not credible, rejected its claims for extras, and accepted the respondent's evidence regarding back charges and costs to complete.

The Divisional Court dismissed the appeal, finding that the trial judge's factual findings were available on the record and her approach to contract accounting was correct.

The appeal was dismissed with costs of $7,500 awarded to the respondent.

The moving party sought an extension of time under s. 71(2) of the Construction Act to appeal a judgment that declared his construction lien expired and cancelled a $1.212 million lien bond.

The moving party missed the 15-day appeal deadline by 12 days due to his former counsel's incorrect advice regarding the appeal period.

The Divisional Court granted the extension, finding that the moving party had a bona fide intention to appeal, the delay was minimal and reasonably explained, the respondent suffered no real prejudice, and the proposed appeal regarding the validity of the lien claim had arguable merit.

The moving party sought leave to apply for judicial review of an adjudicator's decision under the prompt payment provisions of the Construction Act.

The Divisional Court established the test for granting leave in such cases, noting that adjudicators' decisions are interim and leave should rarely be granted.

The court held that the test is analogous to the conjunctive test for leave to appeal an interlocutory order.

Finding that the moving party did not meet this high bar, the court dismissed the motion for leave with costs.

The respondent commenced building a house without a building permit and continued construction despite stop work orders and an interlocutory injunction.

The chief building official applied for an injunction and a demolition order under s. 38 of the Building Code Act.

The application judge declined to order demolition, citing the potential benefit to the community and the environmental impact of wasting building materials.

The Divisional Court allowed the appeal, finding the application judge erred in law by considering these extraneous factors instead of the public interest in safety, consumer protection, and enforcement of the Act.

The court ordered the respondent to demolish the unauthorized construction within 60 days, failing which the municipality is authorized to do so.

The appellant contractor appealed a summary judgment decision enforcing a stipulated remedy in a mediated settlement agreement.

The settlement required the appellant to remediate construction deficiencies by a deadline, failing which $30,000 held in court would be forfeited to the respondent.

The motion judge found the appellant failed to remediate the deficiencies and declined to grant relief from forfeiture.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's characterization of the clause as a forfeiture rather than a penalty, nor in her conclusion that enforcing the forfeiture was not unconscionable.

The appellant owner appealed a summary judgment decision awarding the respondent construction manager its share of cost savings under a construction management contract.

The appellant argued the motion judge erred in her interpretation of the contract, her refusal to strike an affidavit, and her finding that the cost savings were lienable under the Construction Lien Act.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's contractual interpretation or her conclusion that cost savings constitute a lienable service.