Roger Gillott

Lien claimants sought orders protecting their construction lien claims from dismissal under sections 37 and 46 of the Construction Act due to claims not being set down for trial within two years of commencement.

The claims had been stayed by receivership orders.

The court granted the orders sought, finding that the processes employed were not undermining the policy of the Construction Act and that the circumstances warranted protection of the lien claims while the receivership proceeded.

The court emphasized the importance of balancing insolvency principles with the statutory intent of the Construction Act to deal with liens expeditiously.

The appellant, Canada Forgings Inc., appealed the dismissal of its procurement law claim against Atomic Energy of Canada Limited (AECL).

The trial judge had found the claim statute-barred by the two-year limitation period and rejected the procurement law arguments, concluding no "Contract A" was formed.

The trial judge also ruled a Deloitte Report inadmissible.

The Court of Appeal upheld the trial judge's decision, finding the reasons sufficient, the limitations analysis correct, the procurement law findings sound (no duty of fairness without Contract A), and the Deloitte Report properly excluded due to prior rulings and privilege.

The appeal was dismissed, and the costs award from the trial was upheld.

North Bay Capital Investments Ltd. (North Bay) brought a motion to discharge a construction lien filed by XPL Construction Solutions Inc. (XPL) and to dismiss the action against it, with Verg Construction Corp. and Anthony Vergalito supporting the motion.

North Bay later abandoned the dismissal request.

The court found significant credibility issues and competing narratives regarding the scope of work and invoicing practices between XPL and Verg.

The judge dismissed North Bay's motion to discharge the lien, concluding that there were triable issues and that XPL's claim was not frivolous, vexatious, or an abuse of process.

However, the court exercised its discretion to reduce the lien amount from $872,617.26 to $699,535.02 due to certain improperly included expenses and exaggerated time claims, without prejudice to XPL pursuing the full amount at trial.

The plaintiff, Canada Forgings Inc. (CanForge), sued Atomic Energy of Canada Limited (AECL) alleging breach of a duty of fairness in a procurement process for nuclear reactor components.

CanForge claimed AECL unfairly favored a competitor, Patriot Forge Co., for end fitting forgings for the Bruce and Lepreau projects.

The court dismissed CanForge's claim on two primary grounds: first, it was statute-barred as the claim was discoverable more than two years before it was formally added to the Statement of Claim; second, no Contract A existed between CanForge and AECL, meaning no implied duty of fairness was owed to CanForge as a subcontractor.

The court also assessed damages hypothetically, finding no lost profits even if the claim had succeeded.

The applicant sought the appointment of an arbitrator under a construction agreement.

The respondent cross-applied for a declaration that the arbitration was barred by the Limitations Act, 2002, and that procedural preconditions were not met.

The court granted the application to appoint an arbitrator and dismissed the cross-application, holding that under the competence-competence principle and the 'hands-off' approach to arbitration, the arbitrator should determine their own jurisdiction and the limitation period defence.

This case conference addressed the scheduling of Carillion Construction Inc.'s motion for further productions against the City of Toronto and NORR Limited in a complex multi-party construction litigation concerning Toronto's Union Station project.

Carillion sought various production orders and a discovery completion deadline prior to a scheduled mediation.

The City and NORR argued for delaying the motion until after mediation, citing the volume of existing documents and the laborious process of retrieving new ones.

The court determined that Carillion's motion should proceed prior to mediation, finding no cogent reason to delay the argument, but indicated that the actual production of documents, if ordered, could potentially be deferred until after the mediation.

The court urged counsel to schedule the motion.

In a complex mega-litigation concerning the Union Station construction project, Metrolinx, as a third party, brought a motion for particulars against the City of Toronto's amended third-party claim.

Metrolinx sought more specific details, particularly regarding the itemization and quantification of damages, arguing it needed this information to plead its defence and assess its exposure for mediation.

The City argued that the requested information constituted evidence, not particulars, and would be provided through expert reports during discovery.

The court dismissed Metrolinx's motion, holding that the City's pleading provided sufficient material facts for Metrolinx to plead, and that detailed quantification of damages and evidence of specific incidents were matters for discovery, not the pleading stage, especially in complex litigation.

This endorsement from a case conference provides updates on the progress of multiple consolidated actions.

Key discussions included the status of document production between Carillion and the City of Toronto, scheduled motions by the City against subcontractors for document production, and a hearing for construction lien matters.

The endorsement also addressed NORR Limited's statement of claim against the City, the participation of various subcontractors in mediation, and Metrolinx's contemplation of motions for particulars and to strike against the City's third-party claim.

The court set a timeline for Metrolinx to decide on its participation in the upcoming mediation, contingent on the outcome of its motion for particulars.

This case conference endorsement outlines procedural progress in a complex, multi-party construction litigation involving Carillion Construction Inc., the City of Toronto, and NORR Limited, among others.

The court addressed the schedule for executive discoveries, ruling that they must proceed as planned, contrary to the City's submission.

It also confirmed the mediation schedule for March-April 2019, involving various claimants and insurers.

Further directions were given regarding documentary production by subcontractors and the City's amended third-party claim against Metrolinx, setting deadlines for Metrolinx's response or motion.

The defendant, Atomic Energy of Canada Limited, brought a motion for summary judgment to dismiss the plaintiff's claims for breach of duty of fairness, defamation, negligence, and fraudulent concealment arising from a tendering process.

The court dismissed the motion for summary judgment regarding the duty of fairness and limitation period issues, finding that the voluminous and conflicting evidence required a full trial with viva voce evidence.

However, the court granted summary judgment dismissing the defamation claim, as the plaintiff failed to provide direct evidence of the alleged defamatory statements.