Construction Law - ODC

The moving party, 2B Developments, sought an order staying the trial judge's final order which dismissed its action, discharged its construction lien, and awarded damages to the respondent.

Applying the RJR-MacDonald test, the Divisional Court found that the appeal raised serious issues to be tried, including procedural fairness and the trial judge's finding of fraud.

The court held that 2B would suffer irreparable harm if the stay were refused because the discharge of a construction lien is irrevocable, resulting in the permanent loss of a statutory right.

Finding the balance of convenience favoured 2B, the court granted the motion to stay the discharge of the lien pending appeal.

The moving parties brought a motion for leave to bring an application for judicial review of an adjudicator's decision dated February 28, 2024.

The Divisional Court dismissed the motion and awarded costs to the responding party fixed at $5,000 all-inclusive.

The appellant construction manager appealed a motion judge's order reducing the amount of security posted by the respondent developer to vacate a construction lien.

The motion judge had reduced the security by the amount the developer paid directly to the appellant's subcontractors, finding these were valid payments under section 28 of the Construction Act.

The Divisional Court allowed the appeal, holding that the motion judge erred in law by interpreting section 28 to include payments to subcontractors who did not fall within the statutory definition of a 'person having a lien'.

The motion judge's order was set aside.

The appellants sought to appeal a decision declining to award costs against a law firm under s. 86(1)(b)(i) of the Construction Act.

The Divisional Court held that leave to appeal was required under s. 133(b) of the Courts of Justice Act because the appeal was solely regarding discretionary costs, and the costs order did not constitute a 'judgment' under s. 71 of the Construction Act.

Finding that the test for leave was not met, the court denied leave and dismissed the appeal.

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

The Divisional Court adjourned the application because the applicant failed to serve notice on the Attorney General as required by s. 9(4) of the Judicial Review Procedure Act.

The court also directed the applicant to serve notice on the Ontario Dispute Adjudication for Construction Contracts (ODACC) due to issues concerning jurisdiction, process, and the public release of adjudication decisions.

The applicant builder sought judicial review of a decision by Tarion Warranty Corporation ordering it to pay $7,500 in delayed occupancy compensation to a purchaser.

The builder argued that the delay was unavoidable due to a fire and the COVID-19 pandemic, and that it had provided proper notice to the purchaser.

The Divisional Court dismissed the application, finding that Tarion's decision was reasonable because the builder's notice failed to specify an end date for the unavoidable delay or provide a brief description of it, and the builder failed to provide sufficient evidence that the entire delay was caused by the fire and pandemic.

The appellant homeowner appealed a Small Claims Court decision ordering her to pay the respondent contractor $20,046 for home renovations.

The appellant argued the trial judge erred in fact-finding, contract interpretation, applying the Consumer Protection Act, and violated natural justice.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's conclusion that the parties had reached an oral agreement on the amount owing.

The court also upheld the finding that the appellant could not rely on the Consumer Protection Act to void the contract, as she had specifically requested an oral agreement to avoid paying HST.

Claims of bias and inadequate reasons were also dismissed.

The appellant contractor appealed a decision dismissing its construction lien action against the respondent homeowners.

The appellant had performed emergency plumbing and remediation work, billed an excessive amount, left the work unfinished, and used a fake law firm to threaten the homeowners.

The Associate Justice dismissed the lien, contract, and quantum meruit claims because the appellant was not the contracting party, and dismissed the unjust enrichment claim as vexatious and an abuse of process.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Associate Justice's conclusion that allowing the appellant to misuse the legal process in furtherance of a deceptive scheme would bring the administration of justice into disrepute.

The appellant appealed a motion judge's decision that there was no limitation period on the respondent's right to enforce a 1999 construction lien judgment due to the transitional provisions of the Limitations Act, 2002.

The respondent cross-appealed on issues including the vacating of the lien, characterization of set-off claims, and costs.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the transitional provisions because the relevant 'proceeding' was the enforcement action, not the original suit.

The cross-appeal was allowed only to correct the formal order, removing findings of fact improperly included as orders.

The appellant owner appealed a summary judgment finding it liable to pay a subcontractor directly for amounts owed by the contractor, pursuant to a termination agreement.

The Divisional Court dismissed the appeal on the merits, finding the motion judge made no palpable and overriding error in concluding the owner agreed to pay the subcontractor's outstanding balance.

However, the court set aside the motion judge's award of 24% interest, finding the issue was not properly addressed, and directed the parties to provide further written submissions on the proper calculation of interest.

The appellant hired the respondent for leasehold improvements and failed to pay the final invoice balance.

More than two years after the last payment, the respondent commenced a Small Claims Court action.

The trial judge found that a text message sent by the appellant constituted an acknowledgment of the debt under s. 13 of the Limitations Act, 2002, extending the limitation period.

On appeal, the Divisional Court upheld the decision, finding the text message was a clear acknowledgment and that the unique identifiers of a cellular phone satisfy the signature requirement under s. 13(10) of the Act.

The appellant hired the respondent to demolish two buildings under a fixed-price contract.

During demolition, hidden asbestos was discovered, and the respondent charged for its removal as an 'extra'.

The Small Claims Court trial judge found the appellant had agreed to the extra work and awarded damages based on quantum meruit, discounting the respondent's ballparked figures by 30%.

The Divisional Court dismissed the appeal, holding that the trial judge's factual findings were entitled to deference and his application of quantum meruit was appropriate given the informal mandate of the Small Claims Court.

The appellant architect appealed a finding of professional misconduct by the OAA Discipline Committee.

The Committee found the architect in a conflict of interest under s. 43(1)(f) of the Regulation because he provided millwork drawings for a renovation project while also owning a company that submitted a quote for the work.

The appellant argued the provision only applied to formal tendering processes creating a Contract A/Contract B scenario.

The Divisional Court dismissed the appeal, holding that the Committee correctly interpreted 'tenders or bids' to include informal competitive bidding processes, consistent with the plain meaning of the words and the public interest purpose of the legislation.

The moving party sought an extension of time to serve and file a notice of appeal from a judgment under the Construction Act.

The moving party's former counsel mistakenly believed the appeal period was 30 days under the Rules of Civil Procedure, rather than the 15 days prescribed by the Construction Act.

The court granted the extension, finding that the moving party had a bona fide intention to appeal, the 14-day delay was explained by counsel's inadvertence, there was no prejudice to the responding parties, and the proposed appeal was not devoid of merit.

The appellant registered a claim for lien against the respondents' property.

The motion judge discharged the lien under s. 47 of the Construction Lien Act, finding it was registered out of time because the contract work was completed and fully invoiced 11 months prior.

On appeal, the appellant argued the motion judge erred in relying on the invoice and applying the wrong standard.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's factual conclusions and holding that the correct underlying test was applied.

The appellant appealed a decision refusing to confirm a master's report that granted summary judgment in a construction lien action.

The Divisional Court held that a master acting as a referee under the Construction Lien Act has the jurisdiction to use the enhanced powers of a judge on a summary judgment motion.

However, the appeal was dismissed because the master deprived the self-represented respondent of procedural fairness by treating his motion to discharge the lien under section 47 as a motion for summary judgment without notice.

The matter was remitted back to a master for disposition.

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

The motions judge had found that the respondent owner's notice of termination triggered the 45-day deadline for the appellant to file its claim for lien, equating termination with 'abandonment' under the Construction Lien Act.

The Divisional Court allowed the appeal, holding that abandonment requires the contractor to abandon the contract, and an owner's unilateral termination does not automatically constitute abandonment by the contractor.

The claim for lien was therefore registered in time.

The appellant subcontractor appealed a trial judge's decision granting priority to a solicitors' charging order over the subcontractor's trust claim under the Construction Lien Act.

The Divisional Court allowed the appeal, finding that funds payable to the contractor by the owners on account of an assigned lien were trust funds under section 8 of the Act.

The court held that the subcontractor's trust claim, including interest on the trust funds, takes priority over the solicitors' charging order.

The appellants' home was destroyed by fire and rebuilt by the respondent contractor, paid through the appellants' insurer.

The final insurance cheque of $24,828.48 was made payable only to the appellants, who kept the funds.

The respondent sued in Small Claims Court for breach of contract and won.

On appeal, the appellants argued the trial judge erred in finding they owed the funds to the respondent.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the final payment was intended to cover the respondent's approved final invoice.

The appellant contractor appealed a Small Claims Court decision dismissing its claim for an unpaid final invoice of $14,104.17 for home renovations.

The trial judge had found insufficient evidence to prove the claim because the supporting receipts were not filed, despite finding the contractor credible.

The Divisional Court held this was an error of law, as the invoice itself was sufficient evidence and the respondents failed to lead evidence challenging the specific amounts.

The court substituted its own decision, granting judgment for the appellant in the amount of $13,804.17, deducting only a disputed charge for used heaters.