Construction Law - SCJ

The plaintiff brought a motion for summary judgment for unpaid invoices relating to custom millwork installed in two homes renovated by the defendants.

The court found summary judgment appropriate for part of the claim, awarding the plaintiff damages for work actually delivered, less a set-off for conceded deficiencies.

The court dismissed the remainder of the claim for undelivered work due to the plaintiff's failure to provide evidence of its actual damages or costs incurred.

The issue of whether a trust was created under the Construction Lien Act from the sale proceeds of the homes was directed to a mini-trial due to insufficient evidence on the record.

The moving parties (defendants/purchasers) brought a Rule 21 motion to strike the plaintiffs' (builders) statement of claim in its entirety.

The plaintiffs alleged the defendants filed over 800 specious complaints with Tarion, causing damage to their business reputation and economic relations.

The court dismissed the motion for the most part, finding the claims for defamation, intentional interference with economic relations, negligence, negligent misrepresentation, and breach of contract were adequately pleaded.

However, the court struck the claim for 'denial of access/statutory breach' as it does not constitute an independently actionable wrong.

The plaintiff condominium corporation sued 53 defendants for construction deficiencies.

One defendant, Liberty, brought a motion for summary judgment.

The plaintiff brought a cross-motion to stay or quash the summary judgment motion, arguing Liberty failed to make proper documentary production and improperly refused questions on cross-examination.

The court dismissed the plaintiff's cross-motion, finding no grounds to restrict Liberty's right to advance its summary judgment motion, but established a procedure for the plaintiff to bring a specific motion regarding the refused questions and documentary production prior to the hearing of the summary judgment motion.

The moving party defendant, Dufferin, brought a motion to amend the statement of claim to correct the names of John Doe defendants to three proposed defendants under the doctrine of misnomer.

The court found that a defendant has standing to bring a misnomer motion.

The court granted the motion with respect to two proposed defendants (TIL and TIES), finding that the 'litigating finger' pointed at them and they would not suffer non-compensable prejudice.

However, the court dismissed the motion with respect to the third proposed defendant (TDI), finding that although the 'litigating finger' pointed at them, they would suffer non-compensable prejudice due to significant delay and lack of notice, and the moving party failed to show reasonable due diligence under the discoverability principle.

The plaintiff contractor brought a motion for summary judgment against the defendant restaurant for unpaid HST amounts totaling $83,261.60 relating to emergency repair and restoration services following a fire.

The defendant opposed the motion, claiming equitable set-off for $81,711.10 in expenses it incurred to complete work abandoned by the plaintiff's subcontractor.

The court dismissed the motion, finding a genuine issue requiring a trial regarding the defendant's entitlement to equitable set-off, as the claims were closely connected and it would be unjust to grant judgment without determining the counterclaim.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' action for negligent construction of a cottage and retaining wall, arguing the claim was statute-barred.

The plaintiffs experienced slope failure and retaining wall movement in 2009 and received an engineering report identifying the issue, but did not commence their action until 2013.

The court found that the plaintiffs knew the basic essential facts giving rise to a claim upon receiving the 2009 engineering report.

The motion for summary judgment was granted and the action was dismissed.

The plaintiffs retained the defendant to install an HVAC system in their new home.

The system experienced significant problems immediately after installation in 2006.

Despite maintenance attempts, the problems persisted, and by late 2009, the plaintiffs were consulting other service providers who advised the system was improperly installed.

The plaintiffs commenced an action for damages in February 2012.

The defendant brought a motion for summary judgment to dismiss the action as statute-barred.

The court granted the motion, finding the plaintiffs discovered their claim well before February 2010, as they knew the system was defective and were no longer relying on the defendant's good faith efforts to remedy the issues.

The defendant brought a motion to set aside a default judgment of over $467,000 entered against her in an action for unpaid construction materials.

The defendant claimed she was unknowingly made a director of her son's construction company and had no involvement in its operations.

Applying the five-factor test under Rule 19.08, the court found she had an arguable defence and a plausible explanation for her default, having relied on her son's assurances.

Despite significant delay in bringing the motion, the court balanced the factors and set aside the default judgment, ordering the defendant to pay $2,000 in costs thrown away to the plaintiffs.

The plaintiff municipality sought leave to amend its statement of claim to add its consulting engineer, WSP, as a defendant in an action concerning defective bridge rehabilitation work.

WSP opposed the motion, arguing the claim was statute-barred by the two-year limitation period.

The court applied the discoverability principle, finding that the plaintiff reasonably relied on WSP's professional advice that the defects were caused by poor workmanship rather than WSP's specified concrete mixture.

The limitation period did not begin to run until the plaintiff obtained independent expert reports revealing WSP's potential negligence.

The motion to add WSP as a defendant and extend the time to set the matter down for trial was granted.

The plaintiffs brought a motion for leave to amend their statement of claim to allege a breach of minutes of settlement by the defendants.

The defendants opposed the motion, arguing the proposed amendments were barred by the Limitations Act, 2002, as the plaintiffs ought to have discovered the alleged defects in the replacement materials upon delivery.

The court granted leave to amend, finding it was not clear that the claim was statute-barred, as the plaintiffs may have reasonably relied on the defendants' good faith in fulfilling the settlement.

The court also granted the plaintiffs' request to transfer the action to the ordinary procedure due to an increase in claimed damages.

At a pre-trial conference for a construction dispute, the parties agreed to vacate the scheduled trial dates and establish a protocol for a joint site inspection.

The inspection will involve representatives from various engineering and consulting firms to determine structural deficiencies, remediation methods, and costs.

The court issued a consent order detailing the inspection process, deadlines for expert reports, and scheduled a further pre-trial conference.

The plaintiffs brought a motion for a status hearing under Rule 48.14(5) to establish a timetable for the remainder of the action, which involved a claim for unpaid construction work on a custom home.

The defendants sought to have the action dismissed for delay.

The Master found that the plaintiffs had an acceptable explanation for the delay, as their former lawyer failed to advance the action despite their instructions, and that the defendants suffered no non-compensable prejudice.

The motion was granted, allowing the action to proceed with a new deadline to set it down for trial.

Following the dismissal of the plaintiffs' motions to lift bankruptcy stays and the granting of summary judgment dismissing the actions against the defendants, the court determined the appropriate costs award.

The defendants sought over $166,000 in costs.

The court awarded partial indemnity costs of $126,124.12, apportioning the liability among the three plaintiffs based on the proportionate size of their respective claims, finding that the summary judgment motions effectively disposed of the entire actions.

The defendant counterclaimed against the plaintiff for $6,097.25 for unpaid invoices.

Neither party led any evidence or made any submissions regarding the counterclaim during the trial.

As a result, the court issued supplementary reasons dismissing the counterclaim.

The plaintiff general contractor sued the defendant flooring subcontractor for breach of contract after the installed resilient flooring exhibited loose, lifting, and telegraphing tiles.

The plaintiff replaced the defective flooring and sought to recover the costs.

The defendant argued the issues were caused by excess moisture in the concrete slab, for which it had obtained a liability release.

The court found that the defendant failed to properly prepare the concrete substrate in accordance with the contract specifications, causing the delamination and telegraphing.

The plaintiff was awarded the replacement costs, less the amount claimed for profit.

The plaintiff and defendant both sought leave to amend their pleadings in an accounting dispute arising from a construction management contract.

The defendant opposed the plaintiff's proposed amendment, arguing it raised a new cause of action that was statute-barred under the Limitations Act.

The Master applied a broad approach to defining a cause of action and found the amendment was based on the same factual matrix as the original claim.

The Master also found that discoverability was a genuine issue for trial, as the plaintiff only received the defendant's general ledger recently.

Both parties were granted leave to amend their pleadings, with costs awarded to the plaintiff.

The defendant in a construction dispute brought a motion for security for costs against the plaintiff subcontractor.

The plaintiff opposed the motion, claiming impecuniosity resulting from the defendant's failure to pay for work performed.

The court found that the plaintiff failed to provide robust particularity of its financial situation to establish impecuniosity.

However, recognizing the merit of the plaintiff's claim and the need to balance financial risk against prejudice, the court ordered security for costs on a step-by-step basis, requiring the plaintiff to post $15,000 rather than the $116,571.12 requested by the defendant.

The plaintiff contractor was hired to renovate a barn for the defendants under a lump sum contract.

The contractor claimed the defendants agreed to a second contract with an increased price for a third floor, and also claimed for various oral extras.

Two unpaid suppliers registered construction liens against the property.

The court found that the defendants only agreed to the original contract and that no third floor was built.

The court assessed the claimed extras, allowing some and dismissing others.

The court also determined the owners' holdback liability to the lien claimants under the Construction Lien Act.

The plaintiff hired the defendant general contractor for a home renovation on a cost-plus basis.

After becoming concerned about costs, the plaintiff hired a cost consultant who discovered a fraudulent invoicing scheme, including inflated sub-trade accounts and double-counted HST.

The plaintiff brought a motion for summary judgment for civil fraud and to pierce the corporate veil to hold the sole shareholder personally liable.

The court granted summary judgment, finding the contractor committed civil fraud and the shareholder used the corporation as an instrument of fraud.

The defendants' counterclaim for unpaid invoices was largely dismissed due to lack of supporting documentation.

The plaintiff paving contractor brought a motion for summary judgment for unpaid invoices.

The defendant general contractor refused to pay, arguing that the asphalt was defective and that a liability release it signed prior to the paving was void due to economic duress.

The court found that the release was a valid amendment to the contract and that the defendant failed to establish economic duress, as it had alternatives available and the plaintiff's pressure was legitimate given the cold weather conditions.

Summary judgment was granted in favour of the plaintiff.