T.B. Rotenberg

This decision addresses motions in three consolidated construction lien actions.

Sutton Forming Inc. sought a declaration on Homes by DeSantis (Lake) Inc.'s minimum holdback obligation under the Construction Lien Act and an order for payment from it.

The court clarified that the holdback is calculated based on the contract price for services actually supplied, not amounts paid, and rejected the owner's objections regarding certificate accuracy and set-off for deficiencies.

The court granted leave for the motion, declared the minimum holdback, and ordered specific payments to Sutton and its sub-subcontractors from the holdback.

The plaintiffs purchased lots in an industrial subdivision and sued the municipality for negligent misrepresentation, alleging they relied on a letter from the building director indicating building permits would be available.

The plaintiffs claimed the letter failed to disclose that the Ministry of the Environment required a section 45 approval before permits could issue.

The Superior Court of Justice dismissed the action, finding that the letter was not misleading and that the plaintiffs failed to read the subdivision agreement, which explicitly stated the requirement for environmental approval.

The court also held that the action was statute-barred as the plaintiffs ought to have discovered the material facts more than six years before commencing the lawsuit.

Following a lengthy condominium dispute trial involving claims of solicitor negligence, construction defects, and condominium governance issues, the court addressed the allocation of costs among multiple parties.

The plaintiff succeeded against the solicitor defendant but failed against several other defendants, including the condominium corporation and property management company.

Applying the principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed reasonable expectations, proportionality, litigation conduct, and Rule 49 settlement offers.

The court issued a Sanderson order requiring the negligent solicitor defendant to pay the costs of the successful condominium defendant, while also apportioning part of the successful property manager’s costs between the plaintiff and the solicitor defendant.

Substantial costs awards were fixed reflecting the complexity and length of the litigation.