Construction Law - SCJ

The court dismissed Gorbern Mechanical Contractors Limited’s motion to discharge or stay Feldt Electric Ltd.’s construction lien action, despite Feldt’s non-payment of an adjudicator’s determination.

The decision finds triable issues regarding the contractual scope of work and the fairness and jurisdiction of the adjudication process.

The court declined to stay the action or return security, emphasizing the need for a trial on the merits and the importance of procedural fairness, even where a party is in breach of statutory payment obligations.

The court approved a class action settlement regarding balcony guardrail failures at the Matrix Towers in Toronto, which led to residents being deprived of balcony access for up to 3.5 years.

The settlement provides a lump sum per unit, regardless of unit size, and includes approval of class counsel fees and disbursements but denies honoraria for the representative plaintiffs.

The decision reviews the risks of litigation, the fairness of the settlement, comparator cases, and the legal standards for settlement approval, counsel fees, and honoraria.

The court denied the moving parties' request for leave to bring urgent motions to vacate claims for lien and certificates of action under section 44 of the Construction Act, finding no true urgency.

The endorsement criticizes the excessive length and lack of organization in the motion materials and highlights the improper use of the court’s urgent motion process.

However, the court allowed the moving parties a limited opportunity to proceed in writing, subject to strict conditions, to avoid jeopardizing an upcoming refinancing.

The court considered whether a construction lien action was properly set down for trial within the two-year period required by section 37(1) of the Construction Act, despite the use of the wrong court file number and style of cause in the trial record.

The defendant, MP Lundy Construction Inc., sought a declaration that the lien had expired and the return of security.

The plaintiff, KE Electrical Ltd., cross-moved to amend the court file number nunc pro tunc.

The court found the error to be an irregularity curable under Rule 2.01 of the Rules of Civil Procedure, relying on the Court of Appeal’s reasoning in Foran.

The defendant’s motion was dismissed and the plaintiff’s cross-motion was granted.

This costs endorsement follows the dismissal of two construction lien actions brought by JCL Concrete Pumping Limited and Ontario Trucking and Disposal Ltd. against SEMA Railway Structures Inc. and Metrolinx.

The court addresses the parties’ submissions on costs, ultimately awarding substantial indemnity costs to SEMA, the successful party, and rejecting the plaintiffs’ arguments for limiting or reducing costs.

The decision reviews the applicable statutory framework, the conduct of the parties, and the offers to settle, and finds that SEMA’s costs were reasonable and proportionate in the circumstances.

This decision concerns a dispute between Wilhelm Concrete and College Grain Inc. (and Jay Shackelton) regarding the construction of concrete silos.

Wilhelm Concrete sought payment for unpaid invoices, while College Grain counterclaimed for damages due to alleged construction deficiencies causing water infiltration in two silos.

The court found that there were construction deficiencies in Silos 2 and 4, resulting in water infiltration, and awarded damages to College Grain for repairs and increased labour costs.

The court also determined the amount owing to Wilhelm Concrete for unpaid invoices, resolved the issue of pre-judgment interest, and found that Jay Shackelton was not personally liable.

The court provided a detailed analysis of the limitation period and the appropriate means test under the Limitations Act, 2002.

The court dismissed Bellsam Contracting Ltd.'s motion to oppose confirmation of Associate Justice Robinson’s interim report in a construction lien dispute.

The decision confirms that the December 17, 2018 budget document was the governing contract, not a later, higher-priced quote.

The court found no error in the Associate Justice’s findings of fact or law, and emphasized the deference owed to such findings on review.

Bellsam’s new legal argument regarding conditional acceptance was rejected as it was not raised at trial and lacked evidentiary support.

Starbank Developments 285 Corp. brought an ex parte motion to declare the plaintiff’s construction lien expired and to vacate the certificate of action from title.

The court found that Starbank had not met the high evidentiary onus required for such a motion, citing insufficient and improper evidence, and concerns about the unilateral deletion of the lien from title without notice to the lien claimant.

The motion was dismissed without prejudice, with directions that any further motion must be brought on notice to the plaintiff and in Brampton, except for a vacating motion under s. 44(1) of the Construction Act.

This decision addresses a lien action under the Construction Act, where the plaintiffs allege a contract for services with the defendants for which they have not been paid.

The court reviews the parties' compliance with section 39 of the Act, the sufficiency of particulars and document inspection, and the need for a timetable to move the proceeding forward.

The court finds the defendants' response to the section 39 request sufficient, denies the plaintiffs' requests for further particulars and inspection, and orders the plaintiffs to plead and attend cross-examination.

Costs are awarded to the defendants.

The decision addresses a motion by Gowing Contractors Ltd. and Zurich Insurance Company Ltd. to strike the statement of defence of Walsh Construction Company Canada and Walsh Construction Co., and to stay related actions, on the basis that Walsh failed to immediately disclose a settlement with the City of Toronto in a related action.

The court found that the settlement did not entirely change the litigation landscape of the actions involving Gowing and Zurich, and therefore the immediate disclosure doctrine did not apply.

The motion was dismissed.

The court granted the defendants' motion to discharge a construction lien registered by the plaintiff, Skyway Canada Limited, after the plaintiff failed to attend and participate in cross-examination on the claim for lien as required by section 40 of the Construction Act.

The plaintiff's request for an adjournment was denied, and the court found that the plaintiff's conduct in failing to communicate and participate justified the discharge of the lien.

Costs were awarded to the defendants.

The court considered two motions: (1) by the Defendants/Plaintiffs by Counterclaim (the 501 Parties) for leave to file a Fresh as Amended Statement of Defence and Counterclaim, and (2) by the Plaintiffs/Defendants by Counterclaim (the 2B Parties) for a further and better Affidavit of Documents.

The court granted the 501 Parties' motion, finding no abuse of process or limitation period bar, and authorized the Amended Pleading.

The court also largely granted the 2B Parties' request for further production, ordering disclosure of missing bank records and email attachments, and set out a process for resolving any further disputes over redactions or missing documents.

The defendant, 485 Logan Developments Inc., brought a motion under section 44(5)(b) of the Construction Act to reduce the security it posted for a claim for lien registered by the plaintiff, Maple Drywall Inc., relating to a stacked condominium project.

The court found a genuine issue of fact as to whether an "overage" amount was part of the contract price and thus properly included in the lien, but determined that 30% of the overage was not owed, requiring a reduction in posted security.

The court also awarded damages to Logan for excessive interest paid on the lien bond and partial indemnity costs to Maple, reflecting the parties' relative success and conduct.

This decision concerns a construction lien action arising from a condominium project at 200 Woodbine Avenue, Toronto.

Elembe (LMB) Mechanical Ltd. claimed for unpaid contract work and extras, while Two Hundred Inc. counterclaimed for overpayment and deficiencies.

The court found that LMB had partially proved its claim for extras and was entitled to an earned and unpaid contract balance, but failed to prove that any amounts were due and payable as of the date it suspended work.

The court also found that LMB breached the contract by suspending and abandoning work, resulting in the expiry of its lien rights.

Two Hundred Inc. failed to prove its counterclaim for deficiencies.

Judgment was granted to LMB for the unpaid contract balance, but its lien was declared expired.

The court granted a motion to remove D. Kenneth Gibson and Gibson LLP as counsel of record for Wildpine Residence Inc. in a construction lien proceeding, due to Mr. Gibson's role as a key material witness at trial.

The decision addresses the conflict between a lawyer's role as advocate and as witness, and the need to preserve the integrity of the trial process.

The court found that the interests of justice required the removal of Mr. Gibson and his firm, and ordered Wildpine Residence Inc. to appoint alternative counsel within 60 days.

The decision addresses a motion by MGW Home Designs Inc. to restore a construction lien action to the trial list after it was administratively struck, and a cross-motion by Domenic Pasqualino to discharge the lien and dismiss an adjudicator’s order.

The court applies the Reid Factors to determine whether to restore the action, finds no abuse of process by MGW, and upholds the enforceability of the adjudicator’s order pending final determination.

The court also addresses the interplay between adjudication and lien proceedings, limitation period issues, and awards substantial indemnity costs to MGW.

The plaintiff, The Guarantee Company of North America, sought an extension of time to serve a statement of claim or to validate service in a construction indemnity action.

The court reviewed the lengthy delay in service, the explanations provided, and the resulting prejudice to the defendants.

The motion was dismissed, with the court finding the plaintiff failed to provide a reasonable explanation for the delay and that the defendants would be prejudiced in their ability to defend the action due to lost records and faded memories.

The decision addresses whether the defendant, Valerie Connelly, should be granted leave to call five disputed witnesses at trial in a construction lien action, despite failing to comply with a court-ordered deadline for serving trial evidence.

The court finds that while Ms. Connelly failed to adequately explain her breach, the interests of justice favour allowing her to call four of the five witnesses, with the breach compensable in costs.

The court also sets a revised timetable for trial steps, addresses costs thrown away, and fixes costs of the hearing, emphasizing the importance of compliance with court orders and balancing procedural fairness.

The court considered whether the plaintiff’s construction lien, not set down for trial within two years as required by the Construction Lien Act, could be enforced in another lien action relating to a different portion of the same wind energy project.

The court held that because the plaintiff’s lien and the other lien (Corbiere) were registered against different lands, they did not relate to the same “premises” under the Act.

As a result, the plaintiff’s lien expired and was ordered discharged.

The defendant, Corey Sean Libfeld, brought a motion seeking a stay of the action or, alternatively, to prohibit the plaintiff, Pittsburgh Steel Group (PSG), from adducing certain evidence on the basis that PSG’s principal, Zoran Radonjic, violated the deemed undertaking rule by filing documents obtained in discovery with a complaint to the Professional Engineers Ontario (PEO).

The court found a violation of the rule but declined to stay the action, instead prohibiting PSG from adducing specific evidence and ordering costs as a deterrent.