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Aug
31
2016

Condominium Rights

Carleton Condominium Corp no. 396 v. Burdet 2016 Ont CA

The condominium failed to register its lien within the required 3 months of the arrears. The unit owner argued that once its right to lien had expired, the condominium had no right to sue for arrears of common expenses. The court disagreed. Section 136 of the Condominium Act states that nothing restricts the remedies otherwise available to a (condominium) for the failure of a (unit owner) to perform a duty under the Act.

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Aug
31
2016

Liens – Agency

Ontario Provincial Council v. RES Canada Construction 2016 Ont SCJ

Contractor had a collective agreement with the carpenters union. The contractor went bankrupt and the union registered a lien by an individual as trustee of the benefit fund and as agent for all affected union members who had not been paid. The court held that it was not necessary to list the names and addresses of all the unpaid carpenters.

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Aug
29
2016

Limitations Act

Lauesen v. Silverman 2016 Ont CA

The plaintiff was unhappy with the settlement from the moment of the settlement and felt she had received too little. Ultimately, she claimed that her lawyer negligently advised her to enter into the settlement agreement, but that she did not know that there was negligence until her new lawyer obtained an expert report indicating that there was catastrophic impairment. The court held that the limitation period ran not from the settlement date, even though the plaintiff thought that she received too little, but from the date that she realised that her lawyer could have negligently advised her. Although she felt she had received too little at the time of the settlement, she had no basis to believe that her lawyer had advised her incorrectly at that time.

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Aug
29
2016

Personal Liability

Canadian Appliance Source Inc. v. Utradecanada.com Inc. 2016 Ont SCJ

The plaintiff wanted to add parties to an action. The judge held that no evidence needs to be filed to support that motion, unless there was prejudice or abuse of process. The judge held that a pleading in which the new parties were said to have improperly and unlawfully misrepresented themselves and their corporation was sufficient to raise a tenable claim to strip the corporate veil.

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Aug
29
2016

Preservation of Lien (Lien Time)

Clarkway Construction Ltd. v. 2247129 Ontario Inc. 2016 Ont SCJ (Master)

The general indicated on January 25 that it would no longer perform any work on the project. The owner accepted that termination on February 9 and advised the general to remove all of its equipment from the project. The sub did not remove its equipment and on April 14, the owner wrote directly to the sub requesting it to remove its equipment. The sub registered a lien within 45 days of receiving the notice from the owner, but not within 45 days from either January 25 or February 9. The Master vacated the lien holding that a sub is in no better position than the general and, accordingly, the time to preserve a lien, under these circumstances, starts to run when the prime contract is abandoned or terminated.

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Aug
29
2016

Affidavit of Documents

Arnold Hennessy Holdings Inc. v. Flapperless Inc. 2016 Ont SCJ

The plaintiff brought a summary judgment motion. The defendant refused to agree to a timetable without the plaintiff first delivering an affidavit of documents. The rules have now been changed and there is no necessity to serve an affidavit of documents before bringing a summary judgment motion and no entitlement to receive one in the face of a pending motion for summary judgment and the absence of a discovery plan.

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Aug
16
2016

Section 39 Request for Information

Coastal Steel Construction Ltd. v. Man-Shield (NWO) Construction Inc.

s39 of the Construction Lien Act allows a subcontractor or contractor to request information relating to bonds posted and the state of accounts between contracting parties higher on the construction ladder. The purpose is to allow the enquiring contractor to make an informed decision on whether to lien or if it has land, whether to rely on other contractors to prosecute the action on behalf of all lien claimants. The section does not allow a subcontractor to ask its general contractor for a statement of the contract between the general and the sub because the sub already has that information.

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Aug
16
2016

Insurance and Leases

Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc. 2016 Ont CA

The landlord’s contractor caused a fire that destroyed most of the building and the tenant’s premises and property within it. The tenant’s insurer covered $10 million, but $4 million was not covered as outside the policy limits. The tenant commenced an action for the subrogated claim and the additional $4 million against both the landlord and the contractor. The landlord moved for summary judgment and was initially unsuccessful. The Court of Appeal reversed and dismissed the action against the landlord.

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Aug
16
2016

Construction Claims

Ross-Clair v. Canada (Attorney General)

Standard contract between Public Works Canada and general contractor. General was claiming for extra work and delay. Owner claimed that GC 35.4 required general to give sufficient information for the owner’s engineer to determine whether the claim was justified and, since the general initially gave very little information, other than making a claim, its information was insufficient. The contract stated that the information had to be given within 30 days of the issue of a final certificate of completion and, since the full claim was not delivered until 15 months after that date, the claim was out of time.

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Aug
16
2016

Limitations

1702108 Ontario Inc. v. 3283313 Canada Inc., 2016 Ont CA

Section 13(1) of the Limitations Act, 2002 re-starts a limitation period when “a person acknowledges liability in respect of a claim for payment of a liquidated sum…”. The acknowledgement must be clear and unequivocal. It must acknowledge the amount owing. A response that proposes to negotiate a settlement, without admitting liability or the amount, is not such an acknowledgement.

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