Construction Law - SCJ

The defendants brought a motion for leave under the Construction Act to seek security for costs against the plaintiff.

The plaintiff had sued for unpaid invoices and lost profits after the defendants terminated a construction contract due to a loss of financing.

The court found good reason to believe the plaintiff, a formerly dormant shell corporation with no apparent assets, had insufficient assets in Ontario to pay a costs award.

The plaintiff failed to demonstrate sufficient assets or that its claim had a good chance of success.

The court granted leave and ordered the plaintiff to post $201,765.54 as security for costs, staying the action until payment.

The defendants brought a motion to dismiss or permanently stay the plaintiff's construction lien action, arguing that the plaintiff failed to immediately disclose a settlement and assignment agreement with the original lien claimant, contrary to the rule in Handley Estate.

The court found that the settlement and assignment did not fundamentally alter the adversarial orientation of the litigation, as the assignee and the defendants were already adverse in interest and the original claimant's role in providing evidence did not constitute a reversal of its pleaded position.

The motion was dismissed.

The creditor brought a motion for security for costs against the bankrupt in response to the bankrupt's motion to expunge the creditor's proof of claim.

The creditor argued that the bankrupt's expungement motion was frivolous and vexatious under Rule 56.01(1)(e) of the Rules of Civil Procedure.

The court reviewed the evidence, including allegations of breach of trust under the Construction Act, and found that the creditor failed to meet the high standard required to prove the expungement motion was devoid of merit or had virtually no chance of succeeding.

Applying a holistic approach, the court dismissed the motion for security for costs.

The parties resolved a motion regarding a late response to a Request to Admit on consent, leaving only the issue of costs to be decided.

The plaintiff had refused to consent to a short extension of time after the defendants' counsel inadvertently missed the deadline.

The court found that the plaintiff's refusal to consent to a reasonable extension request unnecessarily lengthened the proceedings, especially since the plaintiff had failed to obtain the required leave under the Construction Lien Act before serving the Request to Admit.

Costs were awarded to the defendants on a partial indemnity basis.

The defendant general contractor moved to have a subcontractor's construction lien declared expired for failure to preserve it in a timely manner under the Construction Act.

The moving party argued the last bona fide supply of services occurred in December 2019, while the responding party provided uncontradicted affidavit evidence that work continued until February 2020 due to delays.

The court dismissed the motion, finding a genuine issue requiring a trial regarding the date of the last bona fide supply, as the conflicting evidence and final invoices needed to be tested through cross-examination.

At a case conference, the plaintiff sought directions and a timetable for a summary judgment motion regarding an unpaid $138,134.33 instalment on a commercial roofing contract.

The defendants sought to amend their counterclaim to allege fraud on unrelated projects and requested further cross-examinations and productions.

The court held that the proposed counterclaim should not delay the summary judgment motion, emphasizing the need for proportionate and expeditious proceedings under Rule 1.04 and Hryniak.

The court directed that the summary judgment motion proceed without further cross-examinations or productions related to the counterclaim.

The plaintiff, a subcontractor providing swing stage labour, brought a construction lien and breach of contract claim against the general contractor and owner for unpaid invoices totaling $36,761.73.

The defendants counterclaimed for deficiency correction costs and alleged overbilling, including disputed travel time.

The court found that the defendants fundamentally breached the oral contract by refusing payment based on groundless deficiency claims and terminating the contract without cause.

The court held that travel time was compensable under the agreement and awarded the plaintiff $35,643.03, dismissing the defendants' counterclaim.

Following a trial where the plaintiff succeeded in its construction lien and damages claims, the court determined the costs and interest payable.

The court found the defendant's settlement efforts unreasonable, noting she rejected a settlement conference recommendation and a reasonable Rule 49 offer from the plaintiff.

Applying the principles of proportionality and the factors under Rule 57.01, the court awarded the plaintiff costs of $135,000, representing a reduction from the $186,044.09 claimed, along with prejudgment and post-judgment interest.

The moving party, a woodworking contractor, brought a motion under Rules 45.01 and 45.02 for an interim order preserving the proceeds of any sale of the responding party's residential condominium.

The moving party had previously proven its construction lien and was awarded costs and interest in a Master's report, which the responding party was moving to oppose.

The court found that Rule 45.01(1) applied because the report created a connection between the awarded costs and interest and the proceeds of the condominium's sale, and there was evidence the responding party was attempting to sell the unit without notifying his counsel.

The court ordered that $220,000 from any sale proceeds be paid into court pending the final determination of the motion opposing confirmation of the report.

The self-represented defendant in a construction lien action moved to set aside a notice of discontinuance of his counterclaim, which had been filed by his former counsel over two years prior, and to compel further documentary production from the plaintiff.

The plaintiff opposed the motion and sought leave to bring a motion for summary judgment.

The court dismissed the defendant's motion, finding no inadvertence, mistake, or exceptional circumstances to justify setting aside the discontinuance, and concluding the requested documents were irrelevant to the lien action.

The court granted the plaintiff leave to bring a summary judgment motion, finding it would expedite the resolution of the remaining issues.

The plaintiff contractor sued the defendant homeowners for unpaid amounts under a contract for the construction of a custom home.

The defendants counterclaimed, alleging the plaintiff breached the contract through delays, poor workmanship, and misrepresentations, and argued they were justified in refusing further payments and denying the plaintiff access to the property to fix deficiencies.

The court found that the defendants repudiated the contract by refusing to pay and locking the plaintiff out, while the plaintiff remained willing to complete the work.

The defendants' counterclaim was dismissed, and liability was found in favour of the plaintiff, with damages to be determined at a later hearing.

The plaintiff moved to strike the self-represented defendant's statement of defence and counterclaim due to his failure to comply with court orders, including failing to serve affidavit evidence-in-chief and refusing to answer discovery questions.

The court struck the defendant's set-off defence and counterclaim, finding he had failed to pursue them meaningfully.

However, the court declined to strike the statement of defence entirely, granting the defendant one final peremptory deadline to serve his trial evidence to allow him to defend the plaintiff's claim on its merits.

The plaintiffs purchased a cottage and later discovered significant structural issues and Building Code violations during renovations.

They sued the Township for negligent building inspections and failure to enforce the Building Code Act.

The court found that the Township owed a duty of care to the plaintiffs and breached that duty by granting a building permit without proper plans and failing to identify structural deficiencies during inspections.

The Township was held liable for the costs to remedy the Code violations and for the plaintiffs' mental distress, resulting in a total damages award of $361,875.33.

The defendant brought a motion to dismiss the plaintiff's action under the Construction Lien Act after the plaintiff's lien expired.

The court considered whether it had discretion under section 46 of the Act to allow the underlying contract claim to continue despite the expiry of the lien.

Following appellate authority, the court found it had discretion to permit the contract action to proceed to avoid a multiplicity of proceedings.

The court exercised its discretion to allow the action to continue on terms, finding no irremediable prejudice to the defendant and favouring the resolution of disputes on their merits.

The plaintiff brought a motion to quash the defendant's appeal to the Divisional Court from an order dismissing the defendant's motion to discharge a construction lien.

The plaintiff argued the appeal was barred by s. 71(3) of the Construction Lien Act because the underlying order was interlocutory.

The court dismissed the motion to quash, finding that the underlying order was final because it deprived the defendant of a substantive defence that would have ended the lien action and allowed for the return of posted security.

Two unpaid construction lien claimants sought priority over a first mortgagee holding a $6.5 million vendor take-back (VTB) mortgage on a contaminated commercial property.

The court had to determine the actual value of the property on the date the first lien arose and whether the VTB constituted an 'advance' under section 78(3) of the Construction Lien Act.

The court found that the actual value of the property was at least $6.5 million, relying on arm's length offers rather than the lien claimants' expert opinion, and held that a VTB mortgage is an advance equivalent to an institutional mortgage.

Consequently, the mortgagee's interest took priority over the lien claimants.

The defendant brought a motion to compel answers to undertakings and questions refused on discovery in an action involving a claim on a surety bond.

The court applied the tests for relevance and proportionality under the Rules of Civil Procedure.

The court ordered the plaintiff to answer questions relating to time and material costs, documents reviewed for an expert report, and the provision of false statutory declarations.

The court dismissed the motion regarding questions about the plaintiff's calculation of overhead and profits and its payment of trades and suppliers, finding them irrelevant to the lump sum contract claim.

The moving party, a joint venture contractor, brought motions to temporarily stay several construction lien and bond actions commenced by its subcontractors pending the outcome of an ongoing arbitration between the moving party and the project owners.

The court granted leave under the Construction Lien Act to bring the motions and ordered a temporary stay of the actions, finding it just to avoid a multiplicity of proceedings and inconsistent findings, particularly regarding the enforceability of a 'pay when paid' clause.

The plaintiff municipality brought a motion to compel the defendant engineering firm to produce a Risk Management Report and answer questions refused at cross-examination.

The defendant argued the report was protected by litigation and common law privilege.

The court found the report was relevant to the issue of discoverability, as the plaintiff alleged the defendant acted in a conflict of interest by reassuring it about the quality of work.

The court held the report was not protected by litigation privilege because it was not prepared for the dominant purpose of litigation, nor was it protected by common law privilege as it did not meet the Wigmore criteria.

The motion was granted.

The applicants sought to set aside an arbitration award dismissing their claims for unpaid contractor fees, arguing the expedited arbitration rules violated the Arbitration Act by denying them a fair hearing.

The respondents argued the application was out of time and that the parties had agreed to the arbitration rules in their contract.

The Superior Court of Justice dismissed the application, finding the applicants had expressly agreed to the arbitration rules and that the application was brought beyond the strict 30-day time limit under section 47 of the Arbitration Act, which the court had no authority to extend.