Legal Blog

Consultant Appeal

In our November 2003, we discussed the case of Del Ridge Construction Inc. v. General Accident Assurance Co. of Canada, a 2003 decision of the Ontario Superior Court of Justice. In that case, on a summary judgment motion, the judge allowed the consultant to amend a payment certificate. Accordingly, the owner was allowed to maintain its defence that the general had not completed as much of the project as the general had claimed and that the consultant had originally certified.

The Ontario Court of Appeal held that the motions judge determined the motion as if it were a trial, based on the written record, rather than determining whether there was a genuine issue for trial, the proper test. The court allowed the appeal, not on the merits but upon deciding that there was a genuine issue for trial. Accordingly, the court overturned the motion judge’s decision that a consultant can withdraw a certificate and that issue will have to be determined at another date.