In our newsletter of January 2012, we discussed the case of Asco Construction Ltd. v. Epoxy Solutions, in the context of the legal principles at issue in the case. The decision was appealed to the Ontario Divisional Court, which decided the matter in a manner completely different from the trial judge; we updated that case in our newsletter of November 2013. Since then, an appeal to the Court of Appeal and, in 2014, another reversal.
A sub tendered to provide the floor epoxy work for a theatre project. The sub based its tender on a sketch that the architect provided. The general accepted the tender and sent a formal contract for the sub to sign. The sub never signed the contract. Instead, it hired a surveyor to survey the theatre floor so that the sub could determine the exact work it was to perform. The evidence at trial indicated that this was a usual practice.
The surveyor determined that the tender sketch was inaccurate and that the sub would need 490cf of fill rather than the 290cf originally estimated. Accordingly, the sub informed the general that the subcontract price had to be increased from $72,500 to $105,000.Continue Reading >
In several of our newsletters, we have asserted that judges do not decide cases based on technical arguments. They want to do justice within the confines of the law and will often go out of their way to do so. An example of this proposition is set out in Lavis Contracting Co. v. Coores Construction Inc., a 2014 decision of the Ontario Superior Court of Justice.
A municipality retained a general to perform road work. The sub performed the paving work for the general. The general had not paid the sub everything the sub thought was due to it and the sub attempted to assert a claim for lien.
The sub could not just register its claim against title to land. The work was performed on a municipal street (i.e. a public highway) and a claim for lien is not preserved by way of registration; rather, it is preserved by serving a copy on the clerk of the municipality.Continue Reading >
We have repeatedly stressed that lawsuits should really be called “factsuits” because, usually, the proven facts are far more important than the law. A debtor may allege all sorts of facts that, if proven, would result in a successful defence to a creditor’s claim for payment, the key words being “if proven.” In Meridian Credit Union Limited v. Vrankovic, a 2013 Ontario Superior Court of Justice decision, the debtors were given a concrete example of our thesis.
Husband and wife guaranteed a loan from creditor to husband’s corporation. The corporation defaulted and a court-appointed receiver realised some of the security that the corporation had posted in addition to the two guarantees. Without waiting for the receiver to realise on all of the security, the creditor commenced an action against husband and wife on their guarantees.
Husband claimed that creditor had no right to sue husband because the security had not been fully realised; he also claimed that the receiver had sold some of the secured assets for an undervalued amount. These were his only defences. The judge dealt with them succinctly. The loan agreement gave creditor the right to move on guarantees before realising on its other security. Further, it was the court-appointed receiver, not the creditor, who was realising on the security. Husband might complain to the court about the receiver’s conduct, but that was not a defence to creditor’s action.
Wife had four defences to creditor’s claim. The first three were so silly as to almost merit no response; regardless, the judge still had to give reasons for her refusal to give effect to them. These defences, and the judge’s rulings on them, follow.Continue Reading >
A certificate of pending litigation (CPL) ensures that, while litigation affecting land is in progress, the landowner cannot sell or mortgage the very land that is in dispute. To be able to obtain and register a CPL, a claimant must have a reasonable claim to an interest in the land (section 103 of the Courts of Justice Act). A CPL may be obtained on motion without notice (Rule 42.01 of the Rules of Civil Procedure) and, if there is an apparent claim for an interest in land, it is not overly difficult to obtain a CPL. The real fight ensues when the landowner is notified, as required by the Rules, that the land has now been bound by the CPL. Such was the case in Multani Custom Homes Ltd. v. 1426435 Ontario Ltd, (2013) 33 R. P. R. (5th) 163 (Ont SCJ).Continue Reading >