Belmont Concrete Finishing Co. Limited v. Marshall

Belmont Concrete Finishing Co. Limited v. Marshall

Appellants failed to prove that the breaches of trust established by summary judgment occurred after the respondent acquired effective control at the end of May 2002; the onus to prove the temporal and knowledge/assent elements of s.13(1) is on the appellants, and absent evidence that post-May 2002 payments were from trust funds there is no basis to hold the respondent liable under s.13(1).

Citation
2012 ONCA 585
Parties
Plaintiff (appellant): Belmont Concrete Finishing Co. Limited; Plaintiff (appellant): Gage Metal Cladding Limited; Defendant (respondent): Marvin Marshall; Defendant (respondent): Dian Hooks; Defendant (respondent): Michael Brodigan a.k.a. Michael Brodigan Junior; Defendant (respondent): Thomas Leverty; Defendant (respondent): Robert M. Wheler; Defendant (respondent): Internorth Construction Company
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
10 September 2012
Procedural Posture
Civil / Appeal to Court of Appeal (from Divisional Court)
Outcome
Appeal dismissed; action against respondent dismissed.
Legal Topics
Breach of Trust, Director/officer Liability, Construction Lien Act S.13(1), Evidentiary Burden
Source Language
English
Construction Law Trusts Corporate Liability Civil Procedure Breach of Trust Director/officer Liability Construction Lien Act S.13(1) Evidentiary Burden

Case Brief

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Parties

Belmont Concrete Finishing Co. Limited

Plaintiff (appellant)

Gage Metal Cladding Limited

Plaintiff (appellant)

Marvin Marshall

Defendant (respondent)

Dian Hooks

Defendant (respondent)

Michael Brodigan a.k.a. Michael Brodigan Junior

Defendant (respondent)

Thomas Leverty

Defendant (respondent)

Robert M. Wheler

Defendant (respondent)

Internorth Construction Company

Defendant (respondent)

Procedural Posture

Civil / Appeal to Court of Appeal (from Divisional Court)

Legal Issues

  1. 1 Whether respondent is liable under s.13(1) of the Construction Lien Act for breaches of trust by the general contractor
  2. 2 Whether the breaches of trust found by summary judgment occurred after the respondent acquired effective control (end of May 2002)
  3. 3 Who bears the evidentiary onus to prove elements of s.13(1)

Ratio Decidendi

Appellants failed to prove that the breaches of trust established by summary judgment occurred after the respondent acquired effective control at the end of May 2002; the onus to prove the temporal and knowledge/assent elements of s.13(1) is on the appellants, and absent evidence that post-May 2002 payments were from trust funds there is no basis to hold the respondent liable under s.13(1).

Court Disposition

Appeal dismissed; action against respondent dismissed.

Orders

  • Appeal dismissed
  • Costs to the respondent fixed at $10,000 in total