Construction Law - SCJ

The Chalmers defendants moved for a declaration that A3 Construction Inc.'s construction lien had expired and for an order vacating the lien and certificate of action from title.

A3 opposed and cross-moved for a declaration that its action was set down for trial before the expiry of the limitation period.

The court found that A3 took sufficient steps to set the action down for trial within the required time by submitting the trial record through the Civil Submissions Online Portal before the deadline, even though the record was initially rejected for procedural deficiencies.

The court dismissed the Chalmers' motion and granted A3's cross-motion, declaring the action set down for trial as of June 6, 2023.

This decision concerns the costs of a motion regarding a construction lien.

The Honsbergers sought to discharge or reduce a lien registered by Homes by Hendriks Inc. The court previously reduced the lien but did not vacate it.

The parties could not agree on costs, so submissions were made.

The court awarded the Honsbergers $51,313.32 in costs, finding their offer to settle was reasonable and that their costs were not disproportionate.

The court declined to order costs against the principal of the plaintiff personally.

The court considered a motion by 485 Logan Developments Inc. to declare a construction lien registered by Accurate General Contracting Ltd. expired for failure to preserve and perfect the lien in time.

The court found that Accurate’s alleged post-completion work did not extend the lien period, characterizing it as “bootstrapping.” The lien was declared expired, the action dismissed, and damages for the lien bond premium were awarded to Logan.

The court considered a motion for judgment based on the defendants’ failure to respond to requests to admit under the Rules of Civil Procedure.

The plaintiff sought judgment for monies allegedly owing for asbestos removal services.

The court allowed the defendants a tightly timetabled opportunity to move to withdraw their deemed admissions, citing fairness and the lack of non-compensable prejudice to the plaintiff.

The court also addressed the issue of corporate representation, refusing further leave for the corporate defendant to be represented by a non-lawyer.

Zurich Insurance Company Ltd. moved for a declaration that an Assignment Agreement between Mometal Structures Inc. and 9357-1578 Quebec Inc. was null and void, and for dismissal of three related actions as an abuse of process.

The court found that the Assignment Agreement was not precluded by the subcontract, was not a bare assignment of a cause of action, and that 9357 was not required to immediately disclose the Assignment Agreement.

Zurich's motion was dismissed.

The decision concerns two motions to oppose the confirmation of a report of Associate Justice Robinson regarding construction lien and contract claims arising from a Toronto hospital project.

The court confirms the report, finding no error in the associate judge’s analysis of whether Kelson had a direct contract with Sjostrom, the effect of a change order on Amar’s scope of work, and the sufficiency of evidence for claimed damages.

The court upholds the associate judge’s findings that Kelson breached its contract with Amar but that Sjostrom failed to prove its damages, and dismisses both motions.

The court considered whether Fluid Hose & Coupling Inc. was an insured under a builders’ risk insurance policy and thus immune from a subrogated action for property damage.

The court found that the policy’s broad language included Fluid Hose as a subcontractor, barring the action against it.

The court declined to award full indemnity costs, instead fixing costs on a partial indemnity basis.

The court considered a motion by Joanne Fox to permit her spouse, Evan Kirsh, to attend continued examinations for discovery in a Construction Act action, for the purpose of assisting her counsel.

The plaintiff, Irwin Allen Design Build Inc. (IADB), opposed further attendance by Mr. Kirsh, citing alleged disruptive behaviour and negative impacts on its deponent.

The court exercised its discretion to allow Mr. Kirsh’s attendance, subject to conditions: he may attend the examination of Mr. Allen only by videoconference and may attend Ms. Fox’s examination in person or by videoconference, but must not interfere or act as a witness.

The decision balances fairness to both parties, considering Mr. Kirsh’s prior attendance, his role as a material witness, and the need to avoid disruption.

The Honsbergers moved to discharge or reduce a construction lien registered by Homes by Hendriks Inc. (HBH) against their property.

The court found that the date of last lienable work was a genuine issue requiring a trial and declined to discharge the lien.

However, the court reduced the lien amount by $145,121.47, finding that certain materials were not delivered and that a 20% management fee was not lienable.

The court clarified its jurisdiction to reduce a lien under section 35 of the Construction Act and provided guidance on the treatment of overhead and project management fees in lien claims.

This decision concerns a construction lien action that settled before trial.

The plaintiffs, trustees and agents for union members, registered a lien and commenced an action against the contractor and property owner.

After the underlying debt was paid, the property owner (Con-Form Holdings Limited) sought costs from the plaintiffs, arguing the lien was untimely and exaggerated.

The court dismissed Con-Form’s claim for costs, finding the plaintiffs’ actions were justified by the contractor’s default and that the validity and amount of the lien were never adjudicated.

The court ordered Con-Form to pay the plaintiffs $1,000 in costs for responding to the costs submissions.

This decision concerns a mid-trial motion in a construction lien action.

The plaintiff, Village Homes Inc., sought to strike portions of the affidavit and report of the defendant’s witness, Yu Ching Lai, regarding the presence of rebar and concrete in a disputed wall and observations of wall cracking.

The court found that Mr. Lai lacked personal knowledge regarding the rebar and concrete, as his evidence was based on hearsay from a video, and struck those portions.

However, the court allowed Mr. Lai to testify about his personal observations of wall cracking.

The ruling also addresses the parties’ discovery and production obligations, the scope of undertakings, and the admissibility of participant expert evidence.

This decision concerns the allocation of costs and prejudgment interest following a construction lien action.

The court awarded partial indemnity costs to the plaintiff, Zagros Homes Development Inc., against Cando 1 Construction Inc., and substantial indemnity costs to the Owners (Ernest Mbenkum and Alliance Lipenja) against both Zagros and Cando.

The court also exercised its discretion to award prejudgment interest at 2.5% per annum, higher than the statutory rate, due to market conditions.

The decision clarifies the approach to costs where parties have not succeeded against all defendants and addresses the application of prejudgment interest rates in the post-pandemic context.

This costs decision follows a motion by Capitalplus Development Group Ltd. to discharge a claim for lien registered by 2698368 Ontario Inc. The court found that 269 did not have a lien and ordered the return of security posted by Capitalplus, but dismissed the remainder of the motion.

On costs, the court awarded Capitalplus $25,000 in substantial indemnity costs, to be paid jointly and severally by 269 and its principal, Yang Yu, within thirty days.

The court found Ms. Yang’s conduct in registering the lien to be reprehensible and determined that the corporate veil should be pierced to impose personal liability.

The court discounted the costs award due to Capitalplus’s partial lack of success on the motion.

The court denied the defendant’s motion to adjourn a peremptory trial week in a Construction Act lien action, finding insufficient medical evidence to support the principal’s inability to participate.

The decision reviews the discretionary nature of adjournment requests, the need for transparency and timely disclosure, and the importance of summary proceedings in lien actions.

The court found no compelling grounds for adjournment and highlighted the risk of prejudice and delay to the plaintiff and the administration of justice.

The defendant, Capitalplus Development Group Ltd., brought a motion under section 47 of the Construction Act to discharge a claim for lien registered by 2698368 Ontario Inc. on the title to 105 Angus Drive, Toronto.

The court found that 2698368 Ontario Inc. was an "owner" within the meaning of the Act, not a contractor, and therefore could not claim a lien.

The court ordered the return of posted security to Capitalplus and dismissed the remainder of the motion, but allowed 2698368 Ontario Inc. to proceed with its breach of contract claim for renovation costs.

The court considered a motion by the defendants to discharge the plaintiff’s construction lien and dismiss the action as frivolous, vexatious, or an abuse of process, or for delay.

The dispute centered on whether the plaintiff was a proper lien claimant, the nature of his relationship with the defendants (partnership or subcontractor), and whether the lien was properly quantified.

The court found triable issues on the relationship and quantification, dismissed the motion to discharge the lien, and imposed a timetable for the next steps in the litigation.

The court considered motions regarding contempt of a prior order and the setting aside of an interim injunction in a dispute over residential construction and compliance with the Building Code Act.

The respondent was found in contempt for limited conduct but had made significant efforts to purge the contempt.

The court set aside the interim injunction, ordered the respondent to maintain engineering oversight and pay for inspections, and imposed a $7,500 fine for contempt.

The court considered a claim for lien and breach of contract by Zagros Homes Development Inc. against the owners and construction manager/general contractor of a residential construction project.

The court found that Zagros had a valid subcontract with Cando 1 Construction Inc., that Cando breached the contract by terminating it and hiring the sub-subcontractor directly, and that Zagros was entitled to damages for unpaid work.

However, the court found that Zagros failed to prove the timeliness of its lien claim, and thus the lien was declared expired and vacated.

This decision concerns a motion by Ausenco Engineering Canada Inc. to discharge or reduce a construction lien registered by Scott Steel Erectors Inc. in relation to the Magino Gold Mine project.

The court addresses whether Scott Steel could register a lien for work performed under multiple subcontracts, including work by a related entity, Scott Concrete Services Inc., and whether the lien was willfully exaggerated by the inclusion of delay damages.

The court finds that there is a triable issue regarding the application of promissory estoppel and the treatment of the subcontracts "as one," but holds that there is no triable issue as to delay damages under certain subcontracts.

The lien is reduced to $23,670,377.46 plus HST.

The court considered a motion by the defendants (the Owners) for security for costs in a construction lien action.

The Owners argued that the plaintiff, Backyard XP Inc., was a shell company with insufficient assets to pay costs if unsuccessful.

The court found that the Owners met the threshold for security for costs and ordered Backyard to post $25,000, staggered in two tranches.

The court also addressed the impact of a counterclaim and apportioned the security accordingly.

Costs of the motion were awarded to the Owners, proportionate to their success.