Considering the Jurisdictional Nuances of an Associate Justice’s Authority
Considering the Jurisdictional Nuances of an Associate Justice’s Authority Key Takeaway It is important for counsel to be mindful of the jurisdictional limitations of an Associate Justice’s authority when assessing where to bring your client’s motion. The expanded authority of a lien reference Associate Justice pursuant to section 58(4) of the former Construction Lien Act, […]
The Termination or Abandonment of a Contract Does Not Mean It Has “Ceased to Exist”
The Termination or Abandonment of a Contract Does Not Mean It Has “Ceased to Exist” Introduction Last April, Joshua Strub and Jaspal Sangha released an article on the Divisional Court’s decision in SOTA Dental Studio Inc. v. Andrid Group Ltd.[1] to dismiss an application for judicial review of an adjudicator’s determination because of the applicant’s […]
Dismissal of a Non-Lien Action Within a Lien Proceeding for Delay May be Harder Than You Think
Dismissal of a Non-Lien Action Within a Lien Proceeding for Delay May be Harder Than You Think Key Takeaway Failure to set a lien matter down for trial within two-years may result in severe cost consequences and a dismissal of the lien action. However, if the lien action contains non-lien claims, such as claims for […]
Entire Agreement Clauses – Understanding the Nuances of Surrounding Circumstances
Entire Agreement Clauses – Understanding the Nuances of Surrounding Circumstances Key Takeaway Parties entering into a written contract should be aware that if a dispute arises about contractual interpretation, the inclusion of an entire agreement clause in the contract will not prevent the court from considering evidence relating to the circumstances of the contract formation. […]
Lien Rights of a Dissolved Corporation
A Dissolved Corporation May Lose its Lien Rights Key TakeawayFailing to comply with corporate administrative filing procedures, even failures arising through innocent mistake or inadvertence, can severely prejudice your lien rights. For example, a failure to pay corporate filing fees may result in the dissolution of a corporation. Because a dissolved corporation is not a […]
Joining Ontario Breach of Trust and Lien Claims in the Same Action – An Evolving Landscape
Joining Ontario Breach of Trust and Lien Claims in the Same Action – An Evolving Landscape Introduction It was undisputed law under the Construction Lien Act (the “Old Lien Act”) that a trust claim could not be joined with a lien claim. After all, there was an explicit prohibition in section 50(2) of the Old […]
Does Project-Specific Wrap-Up Insurance Automatically Protect You as a Subcontractor?
Does Project-Specific Wrap-Up Insurance Automatically Protect You as a Subcontractor? Lessons Learned from the Court of Appeal’s Decision in Capital Sewer Servicing Inc. v. Crosslinx Transit Solutions Printable PDF Key Takeaway Read your contract terms in their entirety and beware of the implications of priority provisions. Where a contract contemplates that insurance will be carried […]
Settlor Beware: A Full Settlement of Construction Claims May Waive Your Right to Holdback Funds
Settlor Beware: A Full Settlement of Construction Claims May Waive Your Right to Holdback Funds Key Takeaway The existence of the statutory holdback and trust obligations in the Construction Lien Act, now called the Construction Act (the “Act”), does not separate holdback funds and entitlement to release of holdback, from a settlement of all claims. […]
Cost Savings and Profit-Sharing – Are They Lienable?
Cost Savings and Profit-Sharing – Are They Lienable? Key Takeaway Provisions which entitle a contractor to a share of the cost savings are separate and distinct from provisions which entitle a contractor to a share of profits.While profit-sharing arrangements do not give rise to lien rights, the Ontario Superior Court, in Dominus Construction Corporation v. […]
Priorities for Liens and Arrears of Prior Mortgages
Priorities for Liens and Arrears of Prior Mortgages Key Takeaway A recent decision of the Ontario Divisional Court clarifies that if a mortgage has priority over a lien, then so too will all arrears in interest, fees, charges, and expenses have priority over the lien, even if the interest, fees, charges, and expenses arise after […]