Simone Aine Byrne Cullen

A lien action concerning a residential construction project at 39 Craven Road, Toronto.

Village Homes Inc. was initially contracted to manage renovation work but the project expanded substantially beyond its original scope.

The parties disputed whether Village was a construction manager or general contractor, whether there was a fixed price contract change for extra work, and whether the contract was breached or repudiated.

The court found that Village abandoned the contract and failed to prove any amounts owing.

Ms. Connelly's counterclaim for deficiencies and completion costs was dismissed due to insufficient evidence.

Both the claim and counterclaim were dismissed, and Village's lien was discharged.

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.

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 applicants sought damages for water infiltration in their condominium unit against the vendor and the condominium corporation.

They alleged the vendor knew of the leakage prior to closing and the corporation delayed necessary repairs.

The vendor brought a counter-application for the release of a $75,000 holdback.

The court found that the vendor acted reasonably and responsibly upon discovering new leakage just before closing, and that the condominium corporation also acted reasonably and expeditiously within the constraints of the Tarion New Home Warranty Program, as the water infiltration was a complex, sitewide issue.

The applicants failed to provide sufficient evidentiary basis for their claimed damages and procedurally altered their requested relief at the hearing.

The application was dismissed, and the $75,000 holdback was ordered to be returned to the vendor.