Pooneh Sooresrafil

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 plaintiffs brought a summary judgment motion seeking return of their deposits and damages for breach of an Agreement of Purchase and Sale for a condominium unit.

The defendant vendor brought a cross-motion for possession and damages.

The central issue was which party breached the APS by failing to close.

The vendor delivered a Statement of Adjustments containing approximately $60,000 in additional charges that were either unauthorized or unsupported by evidence.

The plaintiffs refused to close pending clarification or removal of these charges.

The court found the vendor's demand for additional payment constituted an anticipatory breach of contract, entitling the plaintiffs to terminate the agreement and recover their deposits.

The court also granted the vendor possession of the unit and damages for occupancy fees, property taxes, and condominium fees incurred during the plaintiffs' continued occupation.

The plaintiff lender brought a motion for summary judgment on a collateral mortgage registered on the defendants' home.

The defendants counterclaimed alleging undue influence and unconscionability.

The court dismissed the lender's motion, finding genuine issues for trial regarding the interplay between undue influence, unconscionability, and independent legal advice.

The court also dismissed the motion of the defendants' son's lawyer, finding genuine issues regarding a conversation with the defendant.

However, the court granted summary judgment in favour of a lawyer friend of the son who had minimal involvement, finding no basis for liability.

The court ruled on the admissibility of expert evidence in a construction lien action.

The defendant sought to call Michael Colalillo, a structural engineer, as an expert under rule 53.03 of the Rules of Civil Procedure.

The court found that Mr. Colalillo did not meet the requirements to testify as a rule 53.03 expert due to non-compliance with the rule’s requirements for expert reports.

However, the court permitted Mr. Colalillo to testify as a participant expert, subject to a qualification voir dire, as his opinions were based on his personal observations and participation in the project.

The court struck his litigation reports and affidavit sworn February 11, 2025, but allowed his earlier affidavit and appended reports from 2022 to be admitted.

The court denied the defendant’s motion to adjourn a peremptory trial week in a Construction Act lien action, finding insufficient medical evidence to support the principal’s inability to participate.

The decision reviews the discretionary nature of adjournment requests, the need for transparency and timely disclosure, and the importance of summary proceedings in lien actions.

The court found no compelling grounds for adjournment and highlighted the risk of prejudice and delay to the plaintiff and the administration of justice.