Robert J. Kennaley

The moving party, a terminated project manager, brought motions to dismiss or stay claims advanced against it in two related construction actions on grounds of abuse of process and multiplicity of proceedings.

The responding parties had advanced identical counterclaims for deficiencies and delay across multiple proceedings arising from the same construction project.

The court found the counterclaim in the simplified procedure action was duplicative and an abuse of process, but accepted the responding parties' discontinuance of that claim.

The court declined to dismiss the separate balcony deficiency action, finding the issues sufficiently distinct and the parties not identical, but ordered that it be heard together with or immediately after the lien action in the interests of judicial economy.

Following the dismissal of the plaintiff's construction lien claim and the granting of the defendants' counterclaim, the court determined costs and interest.

The court awarded the defendants substantial indemnity costs of $225,000, finding that the plaintiff's claim was without foundation and its conduct abusive.

The court pierced the corporate veil to hold the plaintiff's principal personally liable for the costs, as he dominated the corporation and used it for extortionary purposes.

Prejudgment interest was awarded at a rate of 2% per annum.

The defendant contractor in a construction lien action brought a motion for security for costs against the corporate plaintiff.

The court first granted leave to bring the motion under s. 67(2) of the Construction Lien Act, finding it necessary to 'even the playing field' as the plaintiff lacked sufficient assets in Ontario.

Applying the framework for security for costs, the court found the plaintiff failed to provide full financial disclosure to establish impecuniosity and failed to demonstrate a good chance of success on the merits.

The motion was granted, and the plaintiff was ordered to post security for costs in installments totaling $77,500.

Three lien claimants brought a motion in a receivership proceeding to determine the proper interpretation of s. 78(2) of the Construction Act regarding priority over building mortgages.

The claimants argued they were entitled to priority for the holdback deficiency against each building mortgage individually, effectively multiplying their priority amount.

The court dismissed the motion, holding that the lien claimants' priority is limited to the extent of the single deficiency in the owner's holdback over all building mortgages combined, as multiplying the priority would be contrary to the statutory scheme and unfairly prejudice subsequent encumbrancers.

The plaintiff contractor brought a motion to amend its statement of claim to correct a misnomer, add a claim for additional construction costs, and plead misrepresentation against one of the defendants regarding his status as an owner versus a builder under the New Home Warranties Plan Act.

The defendants opposed the amendments, arguing they were statute-barred and improperly joined to a lien action.

The court granted the motion in its entirety, finding that the misrepresentation claim was not clearly statute-barred as it was discovered recently upon disclosure of a project management agreement.

The court also found that the misrepresentation claim had an essential connection to the lien claim, permitting joinder.

Finally, the court declined to order security for costs or costs thrown away against the plaintiff, noting the defendants' delay in producing the relevant agreement.

The plaintiff contractor sued the defendant homeowners for unpaid invoices related to a major home renovation.

The defendants moved for summary judgment, arguing the claim was statute-barred under the Limitations Act, 2002.

The plaintiff argued the limitation period was tolled due to mediation and the defendants' enrollment in the Tarion warranty process.

The court dismissed the motion, finding that the complex factual matrix and the interplay between the Tarion process and the construction contract could not be fairly and justly adjudicated on a summary record without a full trial.

The plaintiff brought a motion to strike the defendants' statement of defence and counterclaim under Rule 60.12, alleging non-compliance with trial management directions to deliver a Scott Schedule.

The court found that while the defendants' Scott Schedule was imperfect, they had made a good faith effort to comply and offered to revise it expeditiously upon retaining new counsel.

The court dismissed the motion, noting that striking pleadings is a draconian measure reserved for repeated and blatant disregard of court orders.

The court awarded substantial indemnity costs to the defendants because the plaintiff unreasonably forced the motion and ignored a favourable offer to settle.

The defendant contractor brought a Rule 21 motion to dismiss the plaintiff owner's action for faulty workmanship.

The construction contract contained a covenant requiring the owner to purchase property insurance covering damage resulting from defective workmanship and to name the contractor as an insured.

The court held that this covenant to insure operated as a voluntary assumption of risk by the owner, relieving the contractor of liability for damages caused by its negligence or breach of contract.

The plaintiff's action was dismissed.

The defendants brought a motion for summary judgment dismissing the plaintiff’s claim for unpaid professional invoices as statute‑barred under the Limitations Act, 2002.

The plaintiff argued the limitation period was extended by a written acknowledgment of the debt under s. 13 of the Act and alternatively that promissory estoppel prevented the defendants from relying on the limitation defence.

The court held that the plaintiff discovered the claim no later than the date of the final invoice and commenced the action outside the two‑year limitation period.

The alleged acknowledgment did not clearly and unequivocally admit liability for any amount owing, and the evidence did not establish the elements of promissory estoppel.

The claim was therefore dismissed as statute‑barred.

A subcontractor commenced an action for payment relating to framing work on a church construction project, while the general contractor counterclaimed for the cost of completing unfinished work and remedying deficiencies after the subcontractor abandoned the project.

The dispute centered on whether soffit installation fell within the subcontractor’s contractual scope and whether the subcontractor was responsible for correcting roof drainage problems.

The court held that the subcontract language requiring the subcontractor to install “all wood” and the “roof system” included soffit work, allowing those completion costs to be set off.

However, the court found insufficient evidence to attribute the roof drainage defect solely to the subcontractor and ordered that the remediation costs be shared equally.

Judgment was granted in favour of the contractor for the net completion costs.

The moving parties sought an order requiring the responding party to post $35,000 as security for costs in a construction lien proceeding.

The court found that the threshold for a security for costs order under Rule 56.01 was met because a previous costs award remained unpaid and there was reason to believe the responding party lacked sufficient Ontario assets to satisfy future costs.

The responding party failed to demonstrate impecuniosity with detailed financial disclosure or that the action would be halted if security were ordered.

The court held that hardship alone was insufficient and that robust evidence of inability to raise funds was required.

Security for costs was ordered in the amount sought.

A subcontractor lien claimant, Swan & Associates Inc., moved for partial summary judgment declaring its claim for lien was timely.

The owner, the City of Guelph, opposed the motion, arguing the lien was registered out of time and that the recent work was for repairing deficiencies rather than contract work.

The court found that the intermittent architectural finishing work performed by the subcontractor was contract work, not deficiency work.

The court concluded on a balance of probabilities that the subcontractor's last date of supply was within the 45-day statutory period.

The motion for partial summary judgment was granted.