Paul A. Ivanoff

The plaintiff general contractor sued the Toronto Transit Commission (TTC) and other owners for approximately $193 million in damages arising from the delayed construction of the Steeles West Subway Station.

The project was delayed by 1,047 days due to incomplete designs, utility issues, and numerous changes directed by the TTC.

The court found the TTC responsible for the delay and awarded the plaintiff damages for extended contract performance, acceleration costs, underfunded change directives, and unpaid notices of intent to claim.

The court dismissed the plaintiff's attempt to flow through subcontractor claims where liquidating agreements had extinguished the plaintiff's liability.

The TTC's counterclaim for liquidated damages was dismissed as a penalty.

The plaintiff was granted a construction lien for $57,697,627.06.

The appellant appealed from orders of the Superior Court of Justice dismissing its action for delay and awarding costs to the respondents.

The action, commenced in 2005 for negligent engineering work on natural gas turbines, had been dormant since 2009 following a successful appeal of a summary judgment dismissal.

The respondents brought a motion under Rule 24.01 to dismiss for delay and recover costs.

The appellant argued that Rule 48.14, which mandates automatic dismissal of actions five or more years old without trial, should have applied without costs.

The Court of Appeal upheld the dismissal and costs award, finding that Rule 24.01 and Rule 48.14 operate concurrently with no hierarchy between them, and that the court retained jurisdiction to award costs under Rule 24.01 despite Rule 48.14's silence on costs.

A contractor commenced a $205 million action against a public transit authority arising from a major subway expansion contract.

The authority moved under Rule 21.01(1)(a) for determination of a contractual clause prohibiting litigation until the contractor’s final invoice had been processed, and sought a stay under s. 106 of the Courts of Justice Act.

The court held that interpretation of the clause was a pure question of contractual interpretation suitable for determination on a Rule 21 motion.

The provision was enforceable between sophisticated commercial parties and clearly prohibited commencing an action before the contractual triggering event.

As the triggering event had not yet occurred, the action was stayed pending its occurrence.