Rachel Marie Prestayko

The court dismissed Gorbern Mechanical Contractors Limited’s motion to discharge or stay Feldt Electric Ltd.’s construction lien action, despite Feldt’s non-payment of an adjudicator’s determination.

The decision finds triable issues regarding the contractual scope of work and the fairness and jurisdiction of the adjudication process.

The court declined to stay the action or return security, emphasizing the need for a trial on the merits and the importance of procedural fairness, even where a party is in breach of statutory payment obligations.

This decision concerns the interim distribution of the admitted basic holdback under the Construction Act in a complex construction lien reference.

The court fixes the minimum basic holdback obligation of 35 Mercer Limited and orders pro rata payment to certain validated lien claimants, while holding the balance pending further determination of disputed liens, particularly that of 1086289 Ontario Inc. o/a Urban Electrical Contractors.

The ruling addresses the allocation of holdback among multiple classes of lien claimants and the treatment of disputed and unproven liens.

The appellant, Seargeant Picard Incorporated (SPI), appealed a "boomerang" summary judgment order that found the respondents' (Saxbergs') action for breach of a construction contract was not statute-barred.

SPI argued the motion judge erred in the discoverability analysis and in granting the boomerang order.

The Court of Appeal dismissed the appeal, finding no reversible error in the discoverability analysis, particularly regarding the application of the "appropriate means" test under the Limitations Act, 2002, and upheld the boomerang order given the parties' agreement and the thoroughness of the motion judge's review.