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Jan
01
2011

Swiftest

Posted in Construction

The race goes to the swiftest or, if not the swiftest, at least to the person out of the gates the fastest.┬áSection 7(3) of the Construction Lien Act creates a trust for, among other things, money in the hands of an owner after substantial performance has been certified by a payment certifier, declared by a court, or agreed upon by the owner and general (see section 32 of the Act regarding agreement on substantial performance). When a project will be sold, but has not yet been sold, who has priority over the ultimate sale money and the project’s current income: the receiver of an insolvent owner or the contractors who totally completed the project? This answer depends on the facts and is discussed in Royal Bank v. Penex Metropolis Ltd., a 2010 decision of the Ontario Superior Court of Justice.

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Jan
01
2011

Bullets

Posted in Construction

Lawyers have to tread a fine line on the evidence they adduce at trial. Evidence that deals with an issue on which a client’s case is extremely weak can waste time, cost money, and upset the judge. However, if no or too little evidence is adduced on a point in issue, consequences can be disastrous. An example of too little evidence is demonstrated in 4 Star Drywall Ltd. v. Nanak Homes Inc., a 2009 decision of the Ontario Superior Court of Justice.

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Jan
01
2011

Technicality

Posted in Construction

Non-lawyers seem to believe that technicalities will sway the ultimate result in a court action. Although this may once have been the case, it is extremely rare now. Judges want to see a result that is just; if there is a technical aspect that leads to an injustice, judges will not hesitate to craft their decisions in a manner that will negate the technicality. An example of this craftsmanship arises in Juddav Designs Inc. v. Cosgriffe, a 2010 decision of a construction Master in the Ontario Superior Court of Justice.

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