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Jan
01
2011
Swiftest
The race goes to the swiftest or, if not the swiftest, at least to the person out of the gates the fastest. Section 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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01
2011
Bullets
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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01
2011
Technicality
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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