Construction Law - ONSCDC

The applicant sought judicial review of an adjudicator's decision granting the respondent's request for prompt payment under the Construction Act.

The adjudicator found jurisdiction on the basis that the contract was not completed because more than 1% of the contract price was owing.

The Divisional Court quashed the decision, holding that the adjudicator was plainly wrong in law, as 'price of completion' under s. 2(3) of the Act refers to the value of uncompleted work, not the quantum of disputed payment claims.

The matter was remitted for a fresh determination before a different adjudicator.

The applicant moved for an interim stay of a statutory adjudicator's order requiring it to pay over $288,000 to the respondent, pending a motion for leave to seek judicial review based on allegations of fraud.

The court granted the interim stay on the condition that the applicant pay the full disputed amount into court, balancing the statutory goal of prompt payment with the need to secure funds pending the leave application.

The moving party brought a motion to strike portions of an affidavit tendered by the responding party in support of its motion for leave to appeal an adjudicator's decision.

The court noted that the typical practice is to have motions to strike heard at the same time as the primary motion.

The court dismissed the motion without prejudice, granted the responding party leave to amend its affidavit, and set a revised timetable for the leave motion, leaving any remaining disputes about the affidavit's content to the leave panel.

The appellant registered an adjudicator's determination under the Construction Act but failed to give the required notice within 10 days.

The motion judge voided the enforcement steps and barred the appellant from taking any further steps to enforce the determination.

On appeal, the Divisional Court held that while voiding the initial enforcement steps was an appropriate discretionary remedy for the non-compliance, barring future enforcement was disproportionate and contrary to the prompt payment scheme of the Act.

The appeal was allowed and the bar on future enforcement was struck out.

The appellant appealed a Superior Court judgment that dismissed his motion opposing the confirmation of a Construction Lien Report.

The Divisional Court found that the appellant was essentially repeating the same submissions made to the lower court.

The appeal was dismissed for the reasons given by the Superior Court judge, and costs of $10,000 were awarded to the respondent.

The moving party brought a motion for leave to seek judicial review of an adjudicator's determination.

The Divisional Court dismissed the motion and ordered the moving party to pay costs of $2,500 to the responding party.

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.

The appellant appealed an order vacating its claims for a construction lien and dismissing its breach of contract claims.

The appellant argued it was a 'contractor' under the Construction Act by virtue of an undisclosed assignment agreement, rather than a 'subcontractor'.

The Divisional Court upheld the Associate Justice's finding that there was no triable issue regarding the assignment, meaning the appellant was a subcontractor whose lien was registered out of time.

The court confirmed that the Associate Justice applied the correct test for a motion under section 47 of the Construction Act and did not improperly convert it into a summary judgment motion.

The appellant appealed a motion judge's decision allowing a breach of trust claim to be joined with a construction lien claim under the amended Construction Act.

The Divisional Court allowed the appeal, holding that while the Act itself is silent on joinder, O. Reg. 302/18 expressly permits only the joinder of breach of contract or subcontract claims.

By implication, the regulation precludes the joinder of trust claims in a construction lien proceeding.

The order permitting joinder was set aside and the trust claims were struck.

The moving party, the Town of Caledon, brought a motion for leave to apply for judicial review of two decisions made by an adjudicator.

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

The court also ordered that the disputed amount paid into court remain there pending the final decision, and stayed the impugned orders.

The appellant owner appealed a motion judge's order directing the release of holdback funds to subcontractors under the Construction Act.

The appellant argued the motion judge erred in calculating the minimum holdback and in ordering payments without a formal summary judgment motion.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the law regarding basic holdback obligations and set-off, and properly utilized the summary procedure under s. 67 of the Act to expedite payment to subcontractors.

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 moving party sought leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal in writing.

Costs were fixed at $2,500 payable forthwith to the responding construction company.

The moving parties brought a motion for leave to appeal an order dated February 28, 2022.

The Divisional Court granted the motion for leave to appeal, with costs of $5,000 payable in the discretion of the appeal panel, and directed the parties to agree upon a schedule for the exchange of appeal materials.

The defendant appealed the dismissal of its motion for summary judgment.

The defendant argued that the dispute resolution clause in the construction contract extinguished the plaintiff's right to bring a court action because the plaintiff failed to deliver a Notice of Dispute within 15 days of the defendant's decision.

The Divisional Court dismissed the appeal, finding a genuine issue requiring a trial as to whether the defendant satisfied the condition precedent of 'consultation and co-operation' before rendering its decision, which would trigger the 15-day deadline.

The applicant sought judicial review of an adjudicator's decision under the prompt payment provisions of the Construction Act.

The applicant had neither paid the amount ordered by the adjudicator nor obtained a stay of the decision pending the application.

The Divisional Court dismissed the application, holding that failure to comply with a prompt payment order without a stay undercuts the statutory scheme, and invoked equity to decline to hear the application on its merits.

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.