R. Kennaley

The plaintiff construction manager brought a preliminary motion for the production of settlement documents between the defendant owners and a sub-trade.

The defendants had made a direct payment to the sub-trade and sought to reduce the security posted to vacate the plaintiff's lien.

The plaintiff argued the settlement documents were relevant to the security reduction motion and fell under exceptions to settlement privilege.

The court dismissed the motion, finding the settlement details irrelevant to the summary nature of the security motion and noting the merits of the counterclaim were not at issue at this stage.

The defendants, a lawyer and his firm, brought a motion for summary judgment to dismiss the plaintiff's professional negligence action as statute-barred.

The plaintiff alleged the defendants negligently failed to perfect a construction lien, resulting in the loss of its secured position.

The plaintiff argued it did not discover the claim until the conclusion of the debtor's bankruptcy proceedings when it became clear no funds would be recovered.

The court held that the plaintiff knew or ought to have known it had suffered a loss and that a civil action was legally appropriate by October 2014, when it was advised the lien had expired.

The bankruptcy proceeding was not an alternative dispute resolution process that delayed the limitation period.

The action, commenced in 2019, was statute-barred and dismissed.

The plaintiff excavation contractor brought a construction lien claim against the defendant developer for unpaid contract work and extras.

The primary dispute was whether the plaintiff was entitled to charge extra for disposing of contaminated soil, which the defendant argued was included in the fixed contract price.

The court found that the defendant's agent had represented the soil as clean and that the parties had agreed to an extra charge of $47 per metric tonne for contaminated materials.

The court awarded the plaintiff $523,241.99 for the extras, finding the defendant liable for the increased disposal costs and other authorized scope changes.

In a construction lien proceeding involving multiple unconsolidated actions, counsel for one lien claimant sought salvage costs from the trust monies available to all lien claimants.

The court dismissed the claim for salvage costs, finding it lacked jurisdiction to award such costs against non-consenting lien claimants where the actions were not consolidated and the counsel was not appointed carriage counsel.

The court also determined the validity and quantum of the lien claimant's claim, finding it valid for $82,278.69 despite some missing purchaser files and lack of strict compliance with written authorization requirements for extras.

Following summary judgment motions in two related solicitor negligence actions, the plaintiff sought costs against the unsuccessful defendant and requested a Sanderson or Bullock order to make that defendant liable for the successful defendant's costs.

The court awarded the plaintiff $75,000 in costs against the unsuccessful defendant, applying Rule 49.10 consequences.

The court awarded the successful defendant $40,000 in partial indemnity costs against the plaintiff.

The request for a Sanderson or Bullock order was dismissed because the plaintiff did not have a plausible case against the successful defendant and chose to start a separate action rather than add him as a co-defendant.