Construction Law - SCJ

The moving defendants brought motions to enforce settlement agreements dismissing two construction-related actions without costs.

The plaintiff opposed the motions, arguing the settlements were entered into due to misrepresentations, unconscionability, and misapprehension, and brought a cross-motion to join the actions to separate ongoing litigation.

The court found that a valid settlement was reached and rejected the plaintiff's arguments, noting that the alleged misrepresentations were based on double hearsay and the plaintiff was represented by capable counsel.

The court granted the motions to enforce the settlements and dismissed the cross-motion.

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

The defendants counterclaimed for construction deficiencies and intentional infliction of mental distress.

The court found the contract was a 'time and material' contract, not a fixed price contract, but reduced the plaintiff's claim due to a failure to provide proper accounting, awarding $44,299.51 on a quantum meruit basis.

The court also found the plaintiff breached the contract regarding the concrete basement floor and stairs, awarding the defendants $88,333 to remedy the defects.

The claims for delay and mental distress were dismissed.

The plaintiff brought a motion under s. 58(1) of the Construction Act to refer a construction lien action to an Associate Judge for trial.

The defendants opposed, arguing that because the claim amount fell within the monetary jurisdiction of the Small Claims Court, the court was mandated to refer the matter to the Small Claims Court.

The court rejected the defendants' statutory interpretation, holding that s. 58(1) confers discretion to refer the action to either an Associate Judge or the Small Claims Court.

Applying the principles of proportionality and timeliness, the court exercised its discretion to refer the action to an Associate Judge.

The plaintiff contractor sued the defendant property owners for unpaid invoices and extra work related to the installation of a septic system and backfilling of a dog kennel.

The defendants counterclaimed for deficiencies and incomplete work.

The court found that the plaintiff completed the backfill contract and was entitled to payment for it and for snow removal, but dismissed claims for other extras.

The court also allowed the defendants' counterclaim in part, awarding them $5,000 to complete the septic system.

After set-off, the defendants were ordered to pay the plaintiff $5,578.50.

Following the voluntary release of a construction lien by the plaintiff, the defendant moving party sought substantial indemnity costs of $19,932.03 for its motion to discharge the lien.

The plaintiff argued for nominal costs or costs in the cause.

The court awarded partial indemnity costs of $7,000 to the defendant, finding that while the defendant was entitled to costs, the amount claimed was disproportionate and the defendant had engaged in over-preparation and failed to respond to a statutory request for information.

The parties attended a case conference to schedule a 40-day trial for a construction dispute commenced in 2015.

The court noted that there were ongoing interlocutory motions regarding productions and pleadings, and no expert reports had been delivered.

The court declined to fix a trial date, holding that an action with ongoing interlocutory matters is not ready for trial, and directed the parties to return to trial scheduling court once the outstanding matters and expert reports are completed.

The defendant, the Attorney General of Canada, moved for summary judgment to dismiss the plaintiff's $2,000,000 action for breach of contract, quantum meruit, and unjust enrichment.

The plaintiff, a contractor, sought additional payment for delays and increased costs incurred during a window replacement project at a maximum-security penitentiary.

The court granted the motion and dismissed the action, finding that the plaintiff failed to comply with the mandatory dispute resolution and notice provisions under the general contract after the government rejected its claim.

The third party, the City of Mississauga, brought a motion to strike the defendant's third party claim, which was dismissed.

The defendant sought partial indemnity costs of $4,203.60.

The City argued no costs should be awarded or they should be in the cause, claiming it was a public authority and the motion was public interest litigation.

The court rejected the City's arguments, finding the motion was a tactical litigation strategy in a construction dispute, not public interest litigation.

The court awarded the defendant costs of $4,203.60 on a partial indemnity scale.

The defendant moved for summary judgment to discharge a construction lien and certificate of action registered by the plaintiff.

The plaintiff failed to file responding materials and requested an adjournment, which was denied.

The court found that the plaintiff failed to perfect the lien within the 45-day statutory period under the Construction Lien Act.

As the lien had expired, the court granted the motion and ordered the lien discharged, awarding costs to the defendant.

The plaintiff moved for a status hearing under Rule 48.14(5) to extend the set down deadline in an action regarding alleged construction defects in a custom home.

Only one defendant opposed the motion.

The Master found that the plaintiff provided an acceptable explanation for the litigation delay, noting that much of it was due to accommodating the defendants' requests.

The Master also found no evidence of non-compensable prejudice to the defendants.

The motion was granted, and a timetable was set for the remaining interlocutory steps.

The plaintiff general contractor brought a motion to refer its action against a performance bond surety to a Master, to be tried alongside a related construction lien action commenced by a subcontractor.

The defendant surety consented to the relief.

The court granted the motion, finding that a joint trial before the Master was the most efficient procedure and would prevent inconsistent findings.

The plaintiffs brought a Rule 21 motion to determine the effect of a Pierringer Agreement and a prior court order on the remaining claims against the non-settling defendant and subsequent third and fourth parties.

The court clarified that the prior order restricted the plaintiffs' claim against the remaining defendant to several liability, but did not affect the remaining defendant's ability to pursue contribution from third parties.

The motion was resolved with all parties ultimately agreeing on this interpretation, and costs were deferred to the pre-trial or trial judge.

Following a decision where the plaintiffs successfully opposed confirmation of a Master's Report on a single issue that granted them priority over the defendant mortgagees, the court determined the costs of the action.

The plaintiffs sought $117,279.01 based on an offer to settle, while the defendants argued for $3,260.65 due to the plaintiffs' limited success on most issues.

Balancing the proportionality of time spent on the successful issue against the fact that it yielded the plaintiffs' entire desired remedy, the court awarded the plaintiffs $35,000 in costs.

The owner of a condominium unit brought a motion under section 47 of the Construction Lien Act to discharge two construction liens registered by the contractor and subcontractor, arguing they were not preserved or perfected in time.

The lien claimants argued the motion required leave under section 67(2) and that genuine issues for trial existed regarding the date of substantial performance.

The court held that leave was not required because the motion sought final relief.

However, the court dismissed the motion, finding the owner failed to establish that there was no genuine issue for trial regarding the date of substantial performance, abandonment, and whether the parties agreed to continued performance of the contract.

The defendants moved to dismiss the plaintiff's action and discharge its construction lien, arguing that the plaintiff corporation contracted using an unregistered business name and failed to disclose its corporate identity.

The plaintiff argued the lapse in registration was inadvertent and the defendants were aware they were dealing with a corporation.

The court dismissed the motion, finding that the voluminous and contradictory affidavit evidence raised serious credibility issues that could not be resolved on a summary basis and required a full trial.

The applicant obtained a default judgment against a contractor for defective sewer installation and sought to enforce the judgment directly against the contractor's insurer under s. 132 of the Insurance Act.

The insurer denied coverage because the contractor failed to report the claim for nine years, breaching the policy's prompt notice condition.

The court found that the insured breached the notice condition and declined to grant relief from forfeiture, concluding that the delay was unreasonable, substantial, and prejudiced the insurer's ability to investigate and pursue third-party claims.

The application was dismissed.

The defendants brought a motion under Rules 21 and 25 to strike portions of the plaintiff's statement of claim in a construction dispute.

The parties had previously executed minutes of settlement that released all claims except for a specific delay claim.

The court found that the plaintiff's claims extending beyond the delay claim were barred by the settlement release and struck them as an abuse of process.

The court also limited documentary discovery primarily to the period after the performance date.

The plaintiff, Schindler Elevator Corporation, moved for the production of fully unredacted minutes of settlement between the defendants (WBP) and a third party (Yuanda).

WBP had produced a partially redacted version, claiming settlement privilege over the financial terms.

The court found that while the specific settlement amounts should remain privileged, other redacted information relevant to the apportionment of delay and quantification of damages must be disclosed to ensure procedural fairness at the upcoming trial.

The court ordered WBP to produce a further version of the minutes with only the specific settlement amounts and payment dates redacted.

The plaintiff subcontractor supplied lumber for the construction of the defendant's home but was not paid.

The plaintiff dealt with an individual named 'Peter' representing the contractor, which was a shell company.

The court found that the defendant homeowner was 'Peter' and the controlling mind of the contractor.

The court held that funds drawn from the defendant's personal account and represented in a bank draft constituted monies received by the contractor, creating a trust under section 8 of the Construction Act.

The defendant was found personally liable for breach of trust under section 13 of the Act and ordered to pay the outstanding invoices.

The plaintiff sought substantial indemnity costs of $15,172.25 following its success on a motion brought by the moving party to stay a finding of contempt.

The moving party argued costs should be reduced because the plaintiff was unsuccessful on its oral motion for a finding of contempt against an individual personally.

The court declined to award substantial indemnity costs due to the failed oral motion, but awarded the plaintiff partial indemnity costs fixed at $11,000.