W.R. MacDougall

This is a costs and interest decision in a construction lien action.

The plaintiff contractor (LMB) obtained judgment for an earned and unpaid amount of $172,740.47 but failed to prove a timely lien.

The defendant (200) had its counterclaim dismissed and the lien was declared expired.

LMB sought costs on a substantial indemnity basis, while 200 sought partial indemnity costs or no costs.

The court awarded reduced partial indemnity costs to LMB and addressed the calculation of prejudgment interest under the parties' contract.

Starbank Developments 285 Corp. brought an ex parte motion to declare the plaintiff’s construction lien expired and to vacate the certificate of action from title.

The court found that Starbank had not met the high evidentiary onus required for such a motion, citing insufficient and improper evidence, and concerns about the unilateral deletion of the lien from title without notice to the lien claimant.

The motion was dismissed without prejudice, with directions that any further motion must be brought on notice to the plaintiff and in Brampton, except for a vacating motion under s. 44(1) of the Construction Act.

This decision concerns a construction lien action arising from a condominium project at 200 Woodbine Avenue, Toronto.

Elembe (LMB) Mechanical Ltd. claimed for unpaid contract work and extras, while Two Hundred Inc. counterclaimed for overpayment and deficiencies.

The court found that LMB had partially proved its claim for extras and was entitled to an earned and unpaid contract balance, but failed to prove that any amounts were due and payable as of the date it suspended work.

The court also found that LMB breached the contract by suspending and abandoning work, resulting in the expiry of its lien rights.

Two Hundred Inc. failed to prove its counterclaim for deficiencies.

Judgment was granted to LMB for the unpaid contract balance, but its lien was declared expired.

Following a motion for partial summary judgment concerning withheld payments, delay claims, and back-charge claims in a construction dispute, the parties made written submissions regarding costs.

The plaintiff had succeeded only on the delay claim portion of the motion while the remainder of the issues were directed to trial.

The court considered the cost principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including the parties’ divided success and the effect of settlement offers.

The court found that neither party had achieved sufficient success to justify a costs award and that the offers to settle did not trigger Rule 49 consequences.

The plaintiff subcontractor brought a motion for partial summary judgment against the defendant general contractor for unpaid subcontract balances.

The defendant argued it was entitled to withhold funds due to outstanding close-out documentation, a delay claim, and a back-charge for a transfer-switch.

The court granted summary judgment to the plaintiff for $77,501.62 regarding the delay claim, finding the defendant provided no credible evidence to substantiate it.

However, the court found genuine issues requiring a trial regarding the outstanding documentation and the transfer-switch back-charge due to conflicting evidence, and directed a trial on those remaining issues.

The applicant shareholders sought an oppression remedy and a court-ordered shareholder meeting, arguing that the company's Special Quorum Requirement for electing directors was invalid and oppressive.

The requirement mandated a 50% quorum, which had not been met for 15 years, preventing the election of directors.

The court dismissed the application, finding that the board complied with its legal obligations, the quorum requirement was publicly known and approved by shareholders, and the applicants had not attempted to use statutory tools like requisitioning a meeting or soliciting dissident proxies.

The court declined to order a meeting under s. 106 of the OBCA, as it was not impracticable for the shareholders to call one themselves.

In the context of competing applications arising from a disputed annual general meeting, the parties brought motions to compel answers to questions refused during cross-examinations.

The court held that an applicant could not withdraw a statement in his affidavit referencing legal advice and that the statement constituted a waiver of solicitor-client privilege, requiring him to answer questions about the advice.

The court also ordered an expert witness to produce draft reports and communications with counsel, finding that tendering the expert waived litigation privilege over those materials.

Other requests for production and answers were dismissed for lack of relevance.