Robyn Erin Blumberg

The moving party brought a motion for leave to bring an application for judicial review of an adjudication determination made by an adjudicator in an Ontario Dispute Adjudication of Construction Contractors case.

The Divisional Court dismissed the motion for leave without costs.

The moving party brought a motion for leave to bring an application for judicial review of a determination made by an adjudicator under the Ontario Dispute Adjudication for Construction Contractors (ODACC).

The Divisional Court dismissed the motion for leave without costs.

The applicant sought judicial review of an adjudicator's decision awarding the respondent $93,445.92 under the Construction Act.

The dispute centered on whether the adjudicator had jurisdiction under the Act's transitional provisions, given the contract covered clean-up work for two separate wastewater ponds (Pond #7 and Pond #14) with different procurement dates.

The Divisional Court held that the works on the two ponds constituted separate improvements on non-contiguous lands.

Consequently, the adjudicator lacked jurisdiction over claims related to Pond #7, as its procurement process commenced before the adjudication provisions came into force.

The court quashed the award for Pond #7 and reduced the total award to $11,638.17 for Pond #14.

The moving party, the Town of Caledon, brought a motion for leave to apply for judicial review of two decisions made by an adjudicator.

The Divisional Court granted the motion for leave, with costs of $5,000 payable in the discretion of the application panel.

The court also ordered that the disputed amount paid into court remain there pending the final decision, and stayed the impugned orders.

Following the successful motion by Suncity Development Ltd. to declare Alumtech Bond Inc.'s construction lien expired and dismiss the action, the court determined the issue of costs.

The court found that Alumtech's action was without merit based on its own pleadings and that it acted unreasonably by proceeding despite being notified of the expired lien.

Suncity was awarded $40,000 in substantial indemnity costs.

The plaintiff subcontractor brought a motion for summary judgment against the defendant general contractor for unpaid invoices totaling $103,650.53 and for breach of trust under the Construction Act.

The court granted summary judgment for the outstanding debt, rejecting the defendant's argument that a 'pay when paid' progressive payment model applied, as the contract clearly stated payment was due 30 days after invoicing.

The court adjourned the breach of trust claim to a case conference, noting the plaintiff could not establish the absence of a genuine issue for trial because the defendant had failed to provide a full accounting of trust funds.

The moving party, Suncity, brought a motion to declare the responding party's construction lien expired for failure to perfect within the 90-day period under the old Construction Act.

The responding party argued the new Construction Act applied, which would extend the perfection period to 150 days, claiming Suncity was an 'owner' rather than a 'contractor'.

The court relied on clear admissions in the responding party's statement of claim that Suncity was the general contractor and Epic was the sole owner.

Consequently, the old Construction Act applied, the lien was declared expired, and the action was dismissed.

The defendants brought motions to set aside default judgments totaling over $315,000, which were granted after their Statements of Defence were struck for non-compliance with court orders and rules.

The court applied the five-factor test from *Mountain View Farms Ltd. v. McQueen* to determine if the interests of justice favored setting aside the judgments.

The court found that the defendants moved promptly, had an arguable defence, and would suffer significant prejudice if the judgments stood.

While the explanation for default was neutral, the court emphasized that striking a defence is a severe remedy and that the plaintiff could have made more effort to ensure the self-represented defendants were aware of their jeopardy.

The motions to set aside the default judgments and associated writs of seizure and sale were granted, with costs reserved.

Powerline Plus Ltd. brought a motion for an order requiring Platinum Infrastructure Inc. to post security for Powerline's costs in the amount of $202,000.

Platinum opposed, arguing impecuniosity and merit.

The court granted leave for the motion under the Construction Act, finding Powerline established good reason to believe Platinum had insufficient assets, citing indicia of insolvency.

Platinum failed to prove impecuniosity or sufficient assets.

While Platinum showed a good chance of proving Powerline breached the subcontract, its claim quantum was inconsistent, and Powerline's set-off defence had some merit, though lacking cost evidence.

Considering Platinum's litigation conduct, which included unfair practices, the court ordered Platinum to post $100,000 in security for costs, payable in two installments.

The appellant appealed a Master's decision to discharge a certificate of pending litigation (CPL).

The Master had discharged the CPL on the basis of the appellant's material non-disclosure of a "no registration" clause in the Agreement of Purchase and Sale (APS) when obtaining the CPL ex parte.

The appellate court upheld the Master's decision, finding no reversible error in the Master's application of the law regarding the duty of full and frank disclosure on ex parte motions.

The court affirmed that failure to make full and frank disclosure of a material fact is sufficient grounds to set aside an ex parte order.

The appellant, Earl Lewis, operating as The Recovery Board, appealed a judgment finding him jointly and severally liable for conversion of three vehicles.

The vehicles had been towed by Chris's Towing and Lewis was retained to register liens and issue notices of intention to sell.

The application judge found Lewis liable for conversion and awarded damages including HST.

The Court of Appeal upheld the finding of liability for conversion but reduced damages by eliminating the HST component, as the respondent had not incurred HST costs and ownership had changed before actual sales occurred.