Robert J. Kennaley

The appellant general contractor appealed a decision finding that the former Construction Lien Act, rather than the amended Construction Act, applied to its dispute with the respondent owners.

The application judge held that the procurement process commenced before July 1, 2018, triggering the transitional provision in s. 87.3(1)(b), even though the initial proposal contemplated a different property and the respondents did not own the final property at the time of the proposal.

The Court of Appeal dismissed the appeal, finding that the proposal and the final contract related to the same improvement, and that a functional approach to ownership meant the respondents only needed to own the premises at the time of construction.

The Applicant condominium corporation appealed Tarion's decision to disallow a claim for water penetration in the building's common elements.

Tarion argued the claim was reported outside the two-year warranty period and was barred by a release signed by the Applicant and the builder.

The Licence Appeal Tribunal found that notice of the water penetration was provided within the warranty period through unit owner forms and the performance audit.

The Tribunal also held that the release was unenforceable due to ambiguity and did not cover the water penetration claim.

Finding that the building envelope was defective and allowed water ingress, the Tribunal ordered Tarion to ensure specific remedial work is completed.