Robert John Kennaley

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.

This decision addresses costs for motions brought by both the plaintiffs and the defendant concerning the attendance of a non-party at discovery and the service of further affidavits of documents.

The court found that neither side was significantly more successful, as the plaintiffs succeeded on the non-party attendance issue and the defendant on the production issues.

The court emphasized that the time and money spent on these motions were not proportional to the amounts in issue, leading to an order for no costs.

Limen Group Ltd. brought a motion to strike out lien claims registered by Aluma Systems Inc. and Scott Forest Products Ltd., alleging the liens were registered against the wrong premises.

Limen argued the improved lands were confined to PIN 21219-0161, while Aluma and Scott registered against adjacent PINS 21219-0159 and 21219-0160.

The court, treating the motion akin to summary judgment, found genuine issues of fact requiring a trial, including whether the adjacent PINS were part of the "improved premises" or "lands enjoyed therewith" under the Construction Lien Act.

The motion to discharge the lien claims was dismissed.

The plaintiffs and defendant brought cross-motions concerning the attendance of a non-party at discovery and the service of further and better affidavits of documents in a home renovation construction dispute.

The court granted the defendant's request for a non-party (Ms. Clementi) to assist counsel at discovery, with limits on her role to prevent disruption and ensure she does not act as a witness.

Both parties' motions for further document production were dismissed, with the court ordering a proportionate approach where each side produces additional key documents they intend to rely on at trial.

The decision emphasized the 'culture shift' towards proportionality in civil litigation, as articulated by the Supreme Court of Canada in Hryniak v. Mauldin, given the relatively modest amounts in dispute.

The plaintiff, Andrzej Janik, sued two lawyers, Paul Stillman and Anthony Olszowy (represented by his estate), for breach of contract and negligence related to a construction lien action.

Stillman was the litigation lawyer, and Olszowy provided general business advice.

Motions for summary judgment were brought by Olszowy to dismiss the action against his estate, and by Janik against both lawyers.

The court found that Stillman, as the solicitor of record, failed to act with reasonable competence and diligence by not properly diarizing the lien expiry, not advising Janik of the lien's expiration or its questionable validity, and consenting to its removal without client instructions or offering alternative protective measures.

The court dismissed the action against Olszowy, finding he was not responsible for Janik's losses given his limited role and Stillman's primary duty.

Judgment was granted in favour of Janik against Stillman for the uncollected portion of a previous judgment against a third party, representing the loss of security in the property due to Stillman's negligence.

The appellant appealed a trial decision ordering it to pay damages and costs arising from a construction contract dispute.

The Divisional Court upheld the trial judge's findings that the appellant was responsible for soffit and dropped ceiling work, finding no palpable and overriding error.

However, the court allowed the appeal regarding roof drainage repairs, finding the trial judge's factual findings did not support holding the appellant 50% responsible.

The court also reduced the trial costs award, finding the trial judge erred in principle by awarding a premium over partial indemnity costs.

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.

The appellants appealed a summary judgment decision finding they were 'owners' under the Construction Lien Act and owed trust obligations to construction trades.

The Divisional Court dismissed the appeal, holding that the motion judge's finding on ownership was a question of mixed fact and law entitled to deference.

The court also rejected the appellants' argument that privity of contract was required to impose trust obligations under section 9 of the Act, noting that such an interpretation would defeat the legislation's purpose of ensuring contractors and workers are paid in priority to owners.

The appellant commenced a construction lien action against the respondent, who counterclaimed for breach of contract and negligence.

The lien claim was dismissed, but the counterclaim proceeded to trial within the same action, resulting in a judgment for the respondent.

The appellant appealed to the Court of Appeal.

The respondent brought a motion to quash the appeal for want of jurisdiction, arguing the appeal lay to the Divisional Court under s. 71(1) of the Construction Lien Act.

The Court of Appeal granted the motion, holding that a judgment on a counterclaim in a construction lien action remains a judgment under the Act unless explicitly transferred to the ordinary procedure.

The appeal was transferred to the Divisional Court.

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.

Following the quashing of the plaintiff's appeal, the successful defendant sought partial indemnity costs of $29,862.69.

The plaintiff argued the amount was excessive and sought a reduction to $6,500, alleging unreasonable conduct by the defendant's counsel.

The court found no evidence of unreasonable conduct and noted the defendant had to respond to the appeal pending the motion to quash.

After deducting amounts related to Superior Court proceedings, the court fixed the defendant's costs of the appeal and motion to quash at $22,000 inclusive of disbursements and HST.

The defendant brought a motion to quash the plaintiff's appeal to the Divisional Court.

The plaintiff had appealed a Master's note in the procedure book that varied the cap on the defendant's counterclaim from $26,572.54 to $364,447.73.

The court found that the Master's note was an interlocutory step, as the merits of the case remained to be determined and the Master had not issued a confirmed report.

Under section 71 of the Construction Lien Act, an appeal from an interlocutory order is forbidden.

The motion was granted and the appeal was quashed.

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.

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.

The appellant was ordered by the Ministry of the Environment to remove hundreds of thousands of used tires from its property.

The appellant hired the respondent to perform the cleanup.

After allegedly being paid only a fraction of what it was owed, the respondent registered a construction lien against the property.

The appellant moved to discharge the lien, arguing the work was not an 'improvement' under the Construction Lien Act.

The motion judge dismissed the motion, finding the removal of contaminated tires constituted an alteration and repair to the land.

The Divisional Court dismissed the appeal, agreeing that the removal of the tires was an improvement.

The appellant owner entered into a construction contract with the contractor, which included a performance bond issued by the respondent surety.

The contract contained a cost-sharing provision for savings achieved during construction.

The contractor ceased operations before paying the owner its share of the savings.

The owner completed the work and claimed the savings from the surety under the bond.

The trial judge found that while the bond covered the cost savings, the owner's claim failed because it did not promptly declare the contractor in default and notify the surety, causing prejudice to the surety.

The Court of Appeal upheld the trial judge's decision, dismissing both the appeal and the surety's cross-appeal regarding the bond's coverage.