Wade Sarasin

The appellant appealed a partial summary judgment granted to the respondent for unpaid invoices on a construction project.

The appellant argued it was entitled to set-off monies related to alleged deficiencies on unrelated projects under s. 12 of the Construction Lien Act or by way of equitable set-off.

The Court of Appeal dismissed the appeal, finding that s. 12 did not apply because no trust funds were retained, and equitable set-off was unavailable because the projects were entirely separate and unrelated.

An electrical subcontractor brought a construction lien action seeking payment for overtime and premium labour charges and other alleged extras arising from work performed during the construction of an automotive assembly plant.

The subcontract was a stipulated price agreement under the CCA1 standard form, requiring written notice of claims for adjustments to the subcontract price.

The court held that labour performed during premium shifts was within the scope of the subcontracted work and did not constitute “extra work.” The subcontractor also failed to comply with the contractual notice provisions, which operated as a condition precedent to recovery.

Most additional claims were dismissed for the same reason, although the defendant’s counterclaim for a back charge was also dismissed because the evidence did not establish that the subcontractor’s scope included the high-voltage work in question.

Following a successful motion and the dismissal of a cross-motion for leave to bring a motion for security for costs, the court determined the appropriate costs award.

The successful party sought partial indemnity costs exceeding $10,000, while the opposing party argued for a reduced award.

The court accepted the successful party’s submissions, finding the time spent and counsel fees reasonable, including preparation and attendance time for the motion.

The court also considered additional telephone attendances required to finalize the order.

Costs were awarded on a partial indemnity basis in the amount claimed.

The applicant sought to set aside an arbitration award under s. 46 of the Arbitration Act, 1991, alleging procedural unfairness and bias by the arbitrator in a construction dispute arbitration.

The applicant also sought leave to appeal the award on a question of law under s. 45 of the Act.

The court held that the alleged deficiencies concerned substantive disagreements with the arbitrator’s reasoning rather than procedural fairness and therefore did not meet the narrow grounds for setting aside an award.

The court further held that the arbitration agreement incorporated rules providing that the award would be final and binding with no appeal, thereby excluding any right to seek leave to appeal.

The application to set aside the award and the request for leave to appeal were dismissed.

This endorsement corrected an earlier released decision arising from two plaintiff motions in separate construction lien actions to amend statements of claim and obtain production and discovery.

The court noted that the earlier decision inadvertently referred only to one court file, although the issues and parties were the same in both actions.

The endorsement directed that the decision also apply to the second identical court file and that an order issue accordingly.

The plaintiff subcontractor brought a motion for leave to issue an amended Statement of Claim, an order for production of documents, and examinations for discovery in a construction lien action.

The defendant ABB brought a cross-motion for leave to seek security for costs.

The court granted the plaintiff's motion for production and discovery, finding that the plaintiff's claim went beyond a typical lien action by alleging direct contractual undertakings by ABB.

The court dismissed ABB's cross-motion for security for costs, finding insufficient evidence that the plaintiff lacked assets.

A construction contractor brought a motion seeking to stay its own court action so that the parties’ dispute over project delays and asbestos-related issues could proceed under the arbitration provisions contained in a CCDC-2 construction contract.

The defendant argued the motion was brought too late and that the contractual dispute resolution process had been discharged.

The court held that although s. 7 of the Arbitration Act, 1991 did not apply because the moving party had commenced the action, the court retained authority under s. 106 of the Courts of Justice Act to stay the proceeding.

Given the strong policy favouring arbitration and the parties’ contractual agreement to resolve disputes through the contract’s dispute resolution process culminating in arbitration, the court exercised its discretion to stay the action.

Issues regarding delay or compliance with contractual timelines were matters for the arbitrator.

The appellant trustee in bankruptcy appealed a motion judge's decision that estopped the trustee from claiming the bankrupt's interest in his late father's estate.

The bankrupt had received an absolute discharge before the trustee moved for a declaration that the inheritance vested in the estate.

The Court of Appeal allowed the appeal, finding no evidence that the trustee made any representation to abandon its claim or that the bankrupt relied on such a representation to his detriment.

The inheritance remained vested in the trustee for the benefit of creditors.